Copyright transfer in Russia

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Dmitry Naplekov
Dmitry Naplekov
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After the creation of a new work, only the author can determine its fate. In addition to the independent use of the result of creative work, the rights to the object can be transferred to other persons. This is done by concluding contracts of copyright or assignment, as well as licensing agreements. Let's consider what should be taken into account when transferring copyright and related rights to other persons, and what will be the subject of the mentioned transactions.

Transfer options

There are personal and property rights to the results of creative activity. Their regime and content are essentially different, so personal rights of the author will not be able to dispose of on compensation and gratuitous transactions. The set of personal rights includes:

  • to the name - only the author decides whether to use personal data or a pseudonym when making the work public, and misappropriation of authorship is considered plagiarism;
  • on inviolability of work - no one is entitled to change the content or structure of the object, to make changes without the consent of the author;
  • naming - only the creator of the work may determine its name;
  • publication - the creator of a work may decide to make his/her creation public or to leave it unpublished.

Although personal rights are protected by law, they have no property value and cannot be the subject of civil transactions. Even if a transfer of exclusive rights takes place, personal rights will remain intact.

Personal rights can only arise from an individual. Since most countries of the world are parties to international agreements and conventions, equal rights will arise for a citizen and a non-resident, subject to proof of authorship. Methods of confirmation include depositing a copy of the work, certification through a notary, use of signs of legal protection, etc.

Exclusive rights, on the other hand, have a specific value, which can be determined by the right holder himself or the contractual parties. For this purpose, it is possible to determine the amount of remuneration on their own, or to use the services of an independent expert. Disposal of copyrights is possible in the following ways:

  • gratuitous transfer of rights - the author can publish the result of his creative work, and provide free access to the unlimited circle of persons, or transfer the rights to separate subjects;
  • alienation of copyrights - under the contract of cession the creator transfers the exclusive rights for remuneration, after which he will lose the right to use and dispose of the object;
  • conclusion of licensing agreements on temporary transfer of rights - in this case the author will retain the exclusive rights, and the licensee will have only a temporary right of use;
  • registration of contracts of author's order - the parties will determine the conditions of the transfer of exclusive rights to the not yet created work, which the customer will receive after the completion of the creative process.

If registration of contracts on intellectual property objects requires obligatory registration in Rospatent, in case of transfer of copyright such requirement is not established by the law. However, an exception is provided for computer programs or databases. If a registration certificate was obtained for the software, it is also necessary to register in order to make transactions.

Let's consider what rules need to be taken into account when transferring rights under each of these options.

Gratuitous transfer of rights

The peculiarity of the copyright regime is the possibility to transfer the rights to works without receiving remuneration. Such decision can be made only by the author and/or right holder himself. Gratuitous transfer of rights can take place in the following ways:

Gratuitous transfer of exclusive rights does not cancel the regime of personal rights. The creator of the work, his heirs and successors will be able to protect personal rights by any available means.

Copyright contract

It is possible to determine the terms of the transfer of property rights even before the creation of the work. Although this form of transaction is possible for almost any object of creativity, the most common are orders for a photograph or the results of a photo shoot, for advertising and printing products, for a company logo or website. Only for these objects you can determine the exact characteristics of the finished result - the quantity and quality of photos, the requirements for the design project.

The following rules are taken into account when executing an author's order contract:

  • the parties determine the characteristics and requirements for the not yet created object, the amount of remuneration and advance payment;
  • within the terms established by the contract, the contractor must complete the work on the object and hand it over to the customer;
  • after the transfer of the object under the act, the customer pays the remainder of the remuneration and acquires exclusive rights.

Since copyrights are not registered in the authorized bodies, the execution of the contract of order will allow to properly confirm the fact of creation of the object and the legality of its possession. This will significantly simplify the dispute resolution procedure.

Assignment agreements

The property rights to any result of creative work can be sold for remuneration. This can be done during the period of legal protection - for authorship it is preserved for the whole life of the creator, as well as for 70 years after his death. The contract for the acquisition of rights is executed according to the following rules:

The buyer under the contract may be not only a private person, but also organizations and entrepreneurs. The purchase of rights will allow the purchaser to use the work, conduct subsequent transactions with others, and take any options to protect against infringement. The original author will not be able to subsequently use his work without the consent of the acquirer, but will be able to protect his personal rights.

License agreements

The law provides the most extensive opportunities for the parties to license agreements. This form of transaction provides only a temporary transfer of the right to use to one or more subjects, and all the conditions will be determined by the parties by mutual agreement.

 

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