When creating a new and unique work, the author has the right to expect his personal and proprietary rights to be respected by third parties. Almost any violation of the protection regime entails civil liability, administrative or criminal penalties. In order to implement protection measures it is necessary to have proof of authorship, or to confirm the legality of the acquisition of property rights to the result of creative work.
Who is entitled to protection
The author in Russia and other legal systems is recognized as a private person. In this case for the emergence of copyrights it does not matter where and how the work was created or made public, what is its content and purpose, whether it has cultural or public value. If personal rights may arise only with the direct creator of the object, the regime of property rights may be acquired by other persons as well:
the author himself, who created the work;
the customer under the copyright contract - in this case, the parameters and requirements for the work are stipulated in advance, as well as the payment procedure for the creative process;
the purchaser under a contract of assignment;
temporary owner of the rights to the work under a license agreement;
heirs and successors of the author, who have received exclusive rights under the will, or in case of inheritance under the law;
the employer, if the creative object was created by his assignment or within the framework of labor relations.
If the author can protect his personal rights, the right holder is given the opportunity to protect only the property rights. Therefore, the grounds for the use of protection measures will depend on the status of the right holder, as well as the conditions of the emergence of rights.
Protection of copyright and intellectual property rights is possible if the status of the creator or right holder of the work is duly confirmed. Such confirmation can be problematic, since the rights to the results of creativity are not subject to registration. The only exceptions are software products for computers and databases - according to the Civil Code of the Russian Federation, the developer can register them voluntarily.
How to Affirm the Right to Protection
To prove authorship or the existence of exclusive rights in a dispute with an infringer, you can use the following methods:
to apply in advance to the copyright agency or society, and transfer a copy of the work to the deponent - in Russia this can be done through the RAO, which will also provide services for the protection of rights;
to certify the fact of creation of the object through notary public;
to use the signs of legal protection for the publication of the work - the symbol "C" in the circle, the name or pseudonym of the author, the year of the first edition;
to pass voluntary registration through the U.S. Library of Congress - this procedure is available even to foreign authors, and the certificate will be issued after the transfer of a copy of the work to the deponent and the payment of the fee.
Depending on the type of creation, establishing rights can also take place in other ways. For example, a painting or photograph may be made public in an exhibition or catalog, a sound recording may be placed in special databases. When claims or lawsuits are made, any evidence of personal and proprietary rights can be presented.
The exclusive rights protection regime will last throughout the life of the creator, as well as for another 70 years after his death. Therefore, even the death of the author does not prevent claims against the infringer or legal action, as long as the legal term of protection has not expired.
Categories of violations
Only authors and copyright holders have the right to determine the fate of a work. National and international legislation gives the opportunity to:
to use the object of copyright at their own discretion - to publish at their own expense or through intermediaries, to leave the work unpublished, to make edits and to change the content;
provide free access for use, copying and distribution of the creation to an unlimited number of persons;
sell the rights to other persons or transfer them without payment of remuneration;
to transfer property rights on a temporary basis - for this purpose licensing agreements shall be executed.
Without the consent or permission of the author, no one can change the content or structure of the work, its name. Only with the consent of the copyright holder may the work be used, reproduced, copied or distributed by others. Lack of such consent or permission is a violation of the protection regime and entails liability under the law.
Violation of the personal rights of the author does not necessarily entail losses or other forms of damage. On the contrary, the illegal use of exclusive rights can be expressed in a specific amount of money - losses or lost profits. Let us highlight the most common categories of violations in the field of copyright and related rights:
plagiarism - appropriation of authorship, full or partial borrowing from someone else's work without the consent of the author;
any forms of illegal use, reproduction, copying or distribution of the object without the consent of the right holder - for a fee or free of charge, on tangible media or through the Internet;
violation of the terms of the license agreement - exceeding the territory of permitted use, non-compliance with the terms of payment of remuneration, unauthorized transfer of rights under sublicense, etc;
changing the content or structure of the work without the consent of the author;
tampering with original works - paintings, photos, manuscripts, etc.
As a rule, infringement of copyrights occurs for the purpose of making a profit. For this purpose, the infringer releases counterfeit products for sale, distributes electronic copies via the Internet, plays music files via TV and radio sources. The manner in which such an infringement was committed is irrelevant to prosecution, while the damage caused will be taken into account in civil and criminal proceedings.
How to prove a violation
Although it is easy enough to identify the fact of illegal use, to make claims and lawsuits, it is necessary to provide written and physical evidence, to calculate and justify the amount of damages, to identify the specific perpetrators. To do this, you can use the following means of proof:
if the violation is related to the sale of counterfeit goods through retail chains, acts of control purchases are drawn up, sales and cash receipts are collected, information about witnesses is taken into account;
violations related to distribution of illegal content through the Internet can be fixed by certification of pages through notary public, by inspections of law enforcement agencies and Roskomnadzor;
to prove the fact of plagiarism, determine the amount of damages or evaluation of property rights expertise may be conducted at the initiative of the holder of rights, law enforcement and judicial authorities.
Physical evidence may include material and digital media with counterfeit goods, audio and video recordings, photographs, copies of printed publications, written correspondence.
In view of the complexity of the procedure of proving, it is advisable to carry out all actions with the support of an experienced lawyer or attorney. Our specialists will provide legal defense for authors and copyright holders in all directions, from revealing the fact of violation up to bringing them to justice under the law. The lawyer will act as a representative in civil, criminal or administrative proceedings, which will allow to eliminate the violation of rights and to compensate the damage in the maximum possible amount.
Directions for copyright protection
The holder of copyrights is provided with many ways of protection, which can be grouped into the following areas:
civil liability - filing claims and lawsuits, proving authorship through the courts, termination of rights transfer agreements, recovery of damages or compensation;
administrative protection - every fact of copyright violation is punished by the Code of Administrative Offences, and the guilty persons will have to pay substantial fine and confiscation of counterfeit;
criminal protection - according to the norms of the Criminal Code will be punished if the violation caused major or especially major damage, was committed repeatedly or by an organized group.
Similar areas of protection are provided by the laws of other states, as well as international conventions, agreements and treaties.
The Civil Code of the Russian Federation gives the possibility to make written claims against the violators. The essence of such claims may be as follows:
eliminating the threat of infringement or stopping the illegal use, copying and distribution of counterfeit products;
removal of illegal content from the Internet, withdrawal of counterfeit goods from the trade turnover;
payment of royalties for the use of the work, voluntary compensation for damages.
If a written demand did not bring results, or the infringer continues to engage in illegal activities, it is possible to sue in court. Even at the stage of seeking judicial protection, you can file a petition to secure the claim. By court order, the activities of the company may be suspended, and products and means of production may be seized.
In civil proceedings, the following list of claims can be made (depending on the nature of the infringement):
proof of proper authorship if another person impersonates the creator of the work and appropriates personal rights;
termination of agreements on the transfer of property rights, if it is proved that there has been a material breach
recovery of penalties for late payment of remuneration under the contracts;
recovery of damages - the plaintiff is obliged not only to prove the fact of violation, but also to substantiate the amount of damages (for example, this can be done on the basis of an expert opinion);
recovery of punitive compensation - the amount can be from 50 thousand rubles to 5 million rubles, or double the value of the infringed product or violated right;
blocking of Internet pages on which illegal content was found;
confiscation of counterfeit products and means of production - at the request of the author or copyright holder, they can be given counterfeit material media, if they are not prohibited for circulation in Russia.
The rights holder can take the case to court personally, or through representatives by power of attorney - lawyers, attorneys. Our company offers the services of professional specialists in the field of copyright protection, who will represent your interests in all court instances.
To protect copyrights it is necessary to take into account many nuances of national and international legislation, provisions of judicial practice. To avoid problems in proving the fact of infringement and substantiating the amount of damages, use the services of our specialists. We offer:
advice in verbal and written form on all issues in the field of copyright and related rights protection;
Assistance in identification and proving of the facts of the violation, determination of the amount of damages and the assessment of infringed rights;
preparation of written claims, statements of claim, appeals to law enforcement and other agencies;
Representation of interests at all stages of bringing the perpetrators to justice.
Regardless of the nature of the violation, we will achieve their elimination and compensation of damages in favor of the author and copyright holder. You can find out more about our specialists' services during a consultation by phone or via the feedback form.