The procedure for protecting intellectual property in the company. Protection of intellectual property in the Russian Federation

PROTECTION OF INTELLECTUAL PROPERTY IN RUSSIA

Relevance of the topic

Today, trade, economic and scientific-technical cooperation cannot be imagined without taking into account the regime for the protection of intellectual property rights in another country. This is necessary both when supplying goods and when investing in Russian or joint projects and when concluding contracts for research, etc. Therefore, when making plans to enter Russian market Swiss businessmen need to be able to understand the Russian security system intellectual property.

The 10 main directions of Russian modernization presented by President Medvedev at the last World Economic Forum in Davos will inevitably require consideration of intellectual property issues in their implementation.

Russian leaders of the highest rank have repeatedly emphasized the importance of creating and improving an intellectual property regime that is adequate to the challenges of developing the Russian economy at the present stage.

The presentation does not pretend to cover the topic completely and does not constitute legal advice that can be used to guide one or another specific situation.

For solutions specific problem to protect your interests in the field of intellectual property in Russia, we recommend that you seek advice from your Russian or Swiss patent attorney. The Gorodissky and Partners firm is the oldest and leading firm of patent attorneys in Russia - we will be glad to help you.

Given the brevity of the speech, in this presentation I tried to present the main features of this system, which can be considered as its features.

General state of legislation and practice

In general, if we characterize the state of the system of protection and enforcement of intellectual property in Russia and take the TRIPS Agreement as a standard, then we can confidently say that the IP protection regime in Russia meets international requirements. This is confirmed, including by foreign interested circles.

International treaties Russian Federation are component Russian legal system. Russia participates in most treaties related to the protection of intellectual property, along with Switzerland. There is also a bilateral agreement between Russia and Switzerland on trade and economic cooperation (signed in 1994), which contains a special Annex on the protection of intellectual property. In mid-2010, an Agreement was signed between the Government of the Russian Federation and Federal Council Swiss Confederation on the protection of geographical indications and appellations of origin of goods, which creates the basis for the mutual provision of adequate and effective legal protection for Russian and Swiss geographical indications and appellations of origin of goods. It is worth noting that if there are discrepancies between the internal Russian legislation and an international treaty, then the norms international treaty have the advantage and can be applied directly.

However, life does not stand still, and the standards developed in the mid-90s of the last century are no longer the most advanced. According to stakeholders, Russian legislation and law enforcement practice require improvement.

In particular, many of our foreign partners note that, despite the high level legislative regulation, in practice, we have a fairly high level of distribution of pirated and counterfeit products on the Russian market. At the same time, it can be noted that the Russian system of protection of intellectual property rights contains the necessary institutions that make it possible to suppress and prevent any violations of intellectual property rights. However, the passive position of copyright holders often deprives Russian law enforcement agencies of the opportunity to apply the mechanisms provided for by law.

Another problem that foreign copyright holders sometimes face in Russia is unfair competition in the form of appropriation of someone else’s intellectual property, as well as abuse of intellectual property rights. And we can really agree with this. It is still not uncommon for foreign holders of trademark rights to discover, upon entering the Russian market, that their trademarks have already been registered by other persons or are used in domain names in the Russian Internet zone. Or, another option, when a development known abroad turns out to be patented in Russia by persons who have nothing to do with it. However, even in such cases there is legal means, allowing, if applied promptly and skillfully, to protect the interests of bona fide copyright holders. In our practice, we have repeatedly been able to solve the problems of our clients faced with the listed phenomena.

Senior Russian officials constantly emphasize the importance of adequately taking into account the role of intellectual property in modernizing the national economy.

Characteristics of legislation governing the acquisition of IP rights

Russian IP legislation has recently been significantly updated. In 2008, part four of the Civil Code came into force, which consolidated and significantly developed the provisions on the legal protection and protection of intellectual property rights that existed in separate legal acts until that time.

In the Russian Federation, all IP objects traditionally protected in other countries are protected.

In the field of copyright and related rights as features Russian system one can note the presence state registration such copyright objects as computer programs and databases, as well as IC topologies. Such registration, although it is optional and does not establish rights (rights arise upon the creation of the work), helps copyright holders to prove that they have exclusive rights to these objects. In addition to state registration, such evidence may be the deposit of copies of works in organizations providing such services, including the company Gorodissky and Partners.

Another feature of the Russian copyright system is the system of charging fees for the free reproduction of phonograms and audiovisual works for personal use, introduced at the end of 2010. This system provides for a charge from manufacturers and importers of equipment and material media used in such reproduction of funds in the amount of 1% of the selling price or customs value of the equipment and material media.

Trademarks

The characteristic features of the trademark protection system in Russia are the following:

In Russia exclusive right a trademark arises only as a result of its registration under a national procedure or international procedure provided for by the Madrid Agreement concerning the International Protection of Marks or the Protocol thereto;

The use in Russia of any designation as trademark without its registration, not only does it not give any rights to this designation, but also will not protect you from accusations of violating another person’s exclusive right to a similar trademark;

In Russia, the exclusive right to a trademark arises from the one who first files an application and registers this mark. At the same time, for the purposes of registration it is not necessary to prove the use of the mark, nor to undertake an obligation to use it after registration. However, if the mark is not used continuously for any 3 years after its registration, the registration of the mark may be canceled at the request of the interested party.

Registration of marks is carried out on the basis of an examination of applications for their compliance with both formal requirements and designation requirements, including checking the absence of earlier rights of third parties that would prevent registration.

Protection for well-known marks is granted on the basis of a special decision of the Patent Office, adopted upon the application of the owner of such a mark. The protection provided to well-known marks is at the level required under the TRIPS/WTO Agreement.

Patents

Patent protection in Russia can be obtained on the basis of Russian patents for an invention, utility model and industrial model, which are issued by Rospatent - the Russian patent office, as well as on the basis of the regional Eurasian patent for an invention, which is issued by the Eurasian Patent Office, located in Moscow. A Russian patent for an invention or utility model, as well as a Eurasian patent, can be obtained on the basis of an international application in accordance with the Patent Cooperation Treaty (PCT).

Patents for inventions and industrial designs are issued based on the results of a full examination, and for utility models - based on the results of a formal examination.

A feature of patent protection of industrial designs in Russia is that the application for a patent for an industrial design must contain a list of essential features of the industrial design.

The protection period for inventions based on a Russian or Eurasian patent is 20 years from the date of filing the application. For inventions concerning medicines and agrochemicals that require special permission to be placed on the market, the period of protection can be extended for up to 5 years.

The maximum term of protection for a utility model patent is 13 years. A patent for an industrial design is 25 years.

Legislation governing the protection of IP rights

Russian legislation, depending on the circumstances and severity of the violation, establishes civil, administrative and criminal liability for violation of IP rights.

In civil order lawsuit the owner of the mark can make the demands listed on the slide to stop the violation, recover the damage caused, including lost profits and expenses for a representative.

An interesting feature that holders of copyright, related rights, and trademark rights very often use is the possibility of demanding compensation from the violator instead of damages. Losses are usually difficult to calculate and even more difficult to prove in court. Compensation may be awarded if a violation is found even without evidence of losses incurred. The amount of compensation is set by the court to range from approximately $3,500 to $167,000 or twice the value of the counterfeit goods or twice the value of the rights.

The law provides for the possibility of preliminary injunctions. .

Pirated copies of works and phonograms, counterfeit goods, as well as materials and equipment used for the production of such copies and goods are subject to seizure and destruction. Gorodissky and Partners have repeatedly participated in both police raids to seize counterfeit and pirated goods and their destruction.

When IP infringements lead to unfair competition, special measures may be used administrative procedures carried out by antimonopoly authorities.

Customs legislation also provides special measures, which can help copyright holders prevent the import of counterfeit and pirated goods into Russia. Every week Gorodissky and Partners receives dozens of messages from customs authorities about the detention of allegedly counterfeit goods that violate the rights of our customers.

Statistics from competent authorities

The functions of the Russian patent office are performed by federal Service on intellectual property, patents and trademarks (abbreviated as Rospatent). Its competence and credibility in the world is demonstrated by its status as an International Searching and Preliminary Examining Authority under the Patent Cooperation Treaty (PCT).

Rospatent accepts and considers applications for registration of various industrial property objects, maintains relevant state registers, carries out official publications of declared and registered objects, considers disputes regarding the granting or refusal of protection.

On the official website of Rospatent there is access to electronic official bulletins and electronic versions registers. Access to search databases of protected industrial property is also provided. As a rule, databases are in Russian and access to them is paid.

Data on the volume of work of the department indicate an increase in the activity of both Russian and foreign copyright holders. In particular, interest in obtaining patents and registering trademarks on the part of Swiss copyright holders continues unabated.

Of the total volume of patent applications filed in Russia by Swiss copyright holders, more than a third goes through the firm Gorodissky and Partners.

Judicial statistics also show that the trust of copyright holders in judicial system, as well as a pro-active position law enforcement in combating IP rights violations.

Certain reliability is assigned by us to specialized court on IP rights, a bill on the creation of which is currently under consideration in the Russian parliament.

About the company

Gorodissky and Partners, through its correspondent foreign law firms and patent attorney firms, represents the interests of clients in more than 100 countries, including the CIS and Baltic countries.

According to the results of international surveys conducted annually by the British magazine "Managing Intellectual Property" among intellectual property specialists from more than 100 countries, Gorodissky and Partners is recognized in Russia as the No. 1 law firm for trademarks and patents during 1998 - 2009 . About 120 patent attorneys and lawyers at Gorodissky and Partners provide advice and provide qualified services to Russian and foreign clients on the full range of intellectual property issues, including patent research, preparation and support of applications for Russian and Eurasian patents, trademarks, breeding achievements, computer programs and databases, IC topology, IP and transactions with them, preparation of agreements on the transfer of IP rights, protection of clients’ interests in courts and in administrative bodies, representation before the Russian Patent Office.

The concept of protection of intellectual property objects

Definition 1

Protection of intellectual property – provision by the state of exclusive rights to the author of an object

The right to an object of mental work belongs to its creator, who has the right to authorize its distribution and use, or to prohibit it. The right to use an object of intellectual property may be granted on a commercial basis or free of charge.

Note 1

Since the creator of an object of intellectual work is the owner of the exclusive right, he can own and dispose of it at his own discretion: bequeath to heirs, transfer to third parties, and the like. By transferring exclusive rights to the object of mental work, the author himself loses them.

The ability of intellectual property to generate commercial benefits necessitates its protection from theft, misuse and distribution.

Let us highlight the basic principles of intellectual property protection:

protectability presupposes the compliance of the object with the conditions established by law;
the copyright holder receives the exclusive right to the protected object;
balance of rights of the creators of the object and the copyright holder in the event that these are different persons;
balance between the exclusivity of the rights granted and the desire of society to limit the monopoly of the author.

Factors determining the need for intellectual property protection:

providing creators with an urgent exclusive protected right to an object of mental work serves as a factor in motivating creative activity;
unlawful use of intellectual property caused by the lack of protection leads to the development of unfair competition;
economic interests of the state, which, on the one hand, is interested in the exchange of new intellectual products, and, on the other, seeks to limit the spread of certain intellectual property in order to protect national security;
protection of public interests associated with access to the treasures of world culture.

Forms of intellectual property protection

Main forms of intellectual property protection:

Copyright;
patents and patent law
provision of trademarks

Copyright gives the creator exclusive rights to distribute a work. The protected right is of a temporary nature, valid throughout the life of the author and for 50-70 years after his death. Providing protection by transferring exclusive rights to the author makes misuse and distribution of the work without his knowledge. However, in an effort to maintain a balance between the interests of the author and society, the legislator made certain exceptions. Third parties may use certain parts of the works for educational purposes. In this case royalties not paid.

Legal protection of such types of intellectual property as utility model, industrial design, invention is carried out with the help of patents and patent law institutions.

Definition 2

A patent is a document confirming the exclusive right of the creator to an object of industrial property.

Without the permission of the patent owner, no third party has the right to use the invention.

Another form of protection of intellectual property is a trademark. With its help it is protected exceptional feature object (product, service, etc.).

Methods of protecting intellectual property

There are two ways to protect intellectual property:

jurisdictional
extra-jurisdictional

The jurisdictional method of protecting intellectual property involves the involvement of various government bodies, including judicial protection. Based on the consequences that the violation of intellectual property rights entailed, the appropriate method of protection can be chosen.

As practice clearly demonstrates, the results of intellectual work increasingly need protection from intruders who, seemingly seduced by easy money, use them for commercial purposes. It is quite natural that such actions, carried out without the knowledge of the creator of the work or the owner of the rights to it, are recognized as illegal, and certain liability is established for the violator.

Effective forms of protection regarding intellectual property

The state provides a wide variety of opportunities to protect the interests of its citizens. IN Lately Particular emphasis is placed on the area of intellectual property, since violations are increasingly being recorded here. Experts argue that the increase in violations in this area is associated with the active development of Internet technologies, thanks to which attackers have gained enormous opportunities to carry out criminal plans.

Currently the most popular methods of protection intellectual rights presented in the following forms:

A patent is a document of a protective nature. It certifies the fact of recognition of authorship and confirms the exclusive rights of the creator. In addition, one more point related to the patent needs to be clarified. The validity period of the papers of this plan is 10-25 years, and therefore you need to ensure that the patent is valid.
License. This paper gives certain rights to fixed time and establishes that over a specified period of time (at least 5 years), the user (license holder) can legally perform certain actions.
Right of reproduction. This form regulates all legal relations arising between the author of the work and other individuals, and which are associated with the reproduction of the object of protection and access to it by a wide audience.
Trademarks are also known as service marks. The state establishes and approves certain visual symbols, the main task of which will be to individualize a specific product or product, as well as to add certain individual characteristics to the product, thanks to which a wide range of consumers will be able to identify the product.
A trade name (brand) that acts as a defense mechanism. As soon as a brand has passed the registration procedure, the right to use a specific product immediately arises. Please note that regarding this form, the copyright holder will be legal entities And organizational structures, and expiration dates will not be established.

In general, the state provides its subjects with a significant number of forms of intellectual property protection.

The most important thing will be to determine which form will be a priority for a given situation, and what exactly will protect the interests of the user best. Here, it is best to consult with an experienced intellectual property attorney to avoid possible negative consequences in foreseeable future.

Intellectual property: key categories and implementation of legal protection

The property of an intellectual genre is a certain system of institutions of exclusive rights, which can be attributed both to unregistered objects and to those objects in respect of which a patent or license is allowed. In any case, no matter what group is identified, the state gives all its citizens the opportunity to receive effective assistance in protecting their legitimate interests.

Intellectual property can be grouped into two main categories:

Copyright, the objects of protection of which include various creations of artistic, literary and visual genres. You can also add various objects of architectural or sculptural complexes, video and audio materials, and much more.
Industrial property. This category will consist of all technological developments used exclusively in production purposes, inventions and trademarks. Particular attention should be paid to those objects that are confidential (for example, related to production management) and are not subject to disclosure or publication. Any violations regarding this category will have stronger consequences for the violators.

The state has created special institutions and structures that study all possible problems with intellectual property and its registration, and allow users to implement any protective mechanisms regarding their intellectual property. In addition, these structures will be engaged in creating and maintaining an atmosphere of healthy competition, which initially creates conditions under which any violations regarding intellectual work will be practically impossible.

In order to guarantee their subjects maximum opportunities for the protection of intellectual rights, special authorized structures were created, the priorities of which were legal relations in the field of intellectual works. They not only regulate all types of interactions that users encounter, but also help create an effective security system that prevents any copyright infringement.

In Russia legal protection intellectual rights will be under the control of the following structures:

Chamber of Patent Disputes, which is functional part structures of Rospatent. This body deals with all cases involving violations of trademarks and inventions with patents. The most important feature here will be adjustment civil legal relations between users, and different interpretations the same norms approved on the basis of actual legislation.
Antimonopoly service, namely the department for the protection of intellectual property. The FAS will directly study conflict situations if they involve issues of unfair competition and the creation unfavorable conditions for users who have some property intellectual character. Any use of trademarks without the knowledge of the copyright holder for the purpose of making a profit will also be under the control of the FAS.
The Intellectual Rights Court, which is a specialized structure that provides consideration of conflict issues in the segment of intellectual work. The body appeared and acquired legality relatively recently, but has already become one of essential tools to resolve any complications in the designated segment. And thanks to it, the protection of intellectual rights occurs more quickly and with a positive effect for the author.

In their work they will focus not only on actual international standards, which are recognized by the Russian side, but also by the internal politics of our country. In particular, special attention will be paid to such regulations as the Federal Law “On Trademarks, Appellations of Origin of Goods and Service Marks” and the “Patent Law of the Russian Federation”. This is where key options for resolving any problematic issues that arise for owners are presented. intellectual results labor.

Punishment for violations in the intellectual property segment

Like any type of violation in the intellectual employment segment, here the attackers are guaranteed various forms of punishment.

Everything will depend on the specific situation, the circumstances of the case and the degree of guilt of the attacker. So, if the user did not suspect that he was violating someone’s interests, a more relaxed version of the punishment will be imposed on him. But if everything happened by conspiracy, with the participation officials or on an especially large scale, then the punishment will be disproportionately harsher.

One of the simplest forms of liability will be considered administrative types of punishment. They are determined based on Article 7.12 of the Code of Administrative Offenses of the Russian Federation. So, it states here that the attacker will be subject to monetary recovery a fine of 40 thousand rubles, accompanied by the mandatory confiscation of all illegal copies that he managed to make.

And here criminal penalty will have much more serious consequences. Often, Article 146 of the Criminal Code of the Russian Federation is used for violations with an increased degree of danger. In this situation, the attacker faces a fine of 200 thousand rubles, imprisonment for 6 months or 480 hours correctional labor. If there are aggravating circumstances (conspiracy between persons malfeasance, increased damage to the owner of the original copyright), then the code toughens the punishment - the amount of the fine will increase to 500 thousand rubles, the attacker can go to prison for 6 years at once.

In a broad sense, the term “intellectual property” refers to the result of the activity of the human mind, expressed in a specific creation. But we are interested in a more pragmatic view of things. What does all this mean for an entrepreneur? Can something intangible be considered as a factor in business development, a serious strategic asset?

Feel the intangible

The intellectual property of an enterprise is developed, systematized and specified knowledge on how to create in-demand products. Such knowledge can be expressed in new technological process, previously unknown, in a device, in an innovative model, product. main feature Such knowledge is that, despite its initial immateriality, it finds concrete embodiment. Coming up with a slogan, logo, program or an entire database is one thing, implementing an idea is another. Ideas by themselves are worthless.

In terms of application, intellectual property is not very different from physical property. Yes, it is intangible and cannot be measured in grams, centimeters or degrees. But it is possible to estimate it at a certain amount, as well as calculate the value (how and to what extent with the help of any invention it will be possible to reduce costs and increase profits). The product of the mind can also be bought and sold, exchanged or donated, licensed.

Objects of intellectual property of the enterprise

Conventionally, such objects can be divided into three groups:

protected by copyright;
protected by patent law;
means of individualization.

Let's go through specific types of mental labor products.

Invention. An invention is understood as any technical solution related to a product or production method (application, implementation, etc.). This technical solution must be new and previously unknown, unparalleled, and most importantly, industrially applicable. For these reasons, not everything invented is officially recognized as an invention, when patented.
Utility model. To put it quite simply, this is the same invention, but not so profound: for example, as a utility models Various modifications of inventions can be patented. It is easier to obtain a patent for such models than for an invention, but they are also much less valuable.
Industrial model. This is no longer a technical solution or a device, but just an artistic and design development that determines appearance any industrial product. In other words, an industrial design is purely design project. The criteria for its patentability are novelty and originality.
Trademarks and service marks. These are designations whose task is to individualize the products or services of an enterprise. The trademark becomes the most important component of the brand and is designed to attract the attention of potential buyers and “anchor” them. Such a sign (or brand, as it is also called) should be associated among people with a specific company, with its reliability, the quality of its products and other characteristics.
Name of place of origin of goods. This is the name of a country, locality, settlement or other geographical location related to the enterprise's products. Moreover, the name does not have to be modern - it can be historical, unofficial, full or abbreviated... An example of a name of origin is Essentuki water. The springs in this area are famous for their good water, so the name itself indicates the quality of the product. In this sense, it has the same meaning as a trademark.

Special mention should be made of “non-traditional” objects that cannot be unambiguously attributed to those listed above. It can be:

topologies of integrated circuits;
programs and databases;
various know-how.

Know-how is a twofold concept. On the one hand, know-how recognizes various information (technical, production, organizational, etc.) about the results of intellectual activity. On the other hand, this is the name given to information about methods of implementation professional activity(if this information has commercial value, actual or potential). The main feature of know-how is that it is known only to those “initiated” (for example, only to the management of the enterprise and the inventor himself). Third parties do not have access to this secret data - the regime is in force trade secret.

As we can conclude from the definition, anything can fall under the category of know-how - from a cunning strategic innovation in monitoring the implementation of business processes to the formula for the secret ingredient in Ashot's shawarma.

The value of intellectual property

Like any properly exploited asset, intellectual property brings significant benefits. The main thing is to use the product of the mind wisely.

With something new and highly effective, you can leave all your competitors far behind. “It has no analogues” – sounds like a fairy tale! But this fairy tale is real.
A patent is always very cool. After receiving a patent, the authority of an enterprise increases sharply, and since top manufacturers and sellers carefully monitor lists of patented new products, an influx of new customers will be ensured.
The international market has adopted a practice according to which the price for products produced using patented technologies is set 20–30% higher than for products from other manufacturers in the same niche.

And in the process of patenting and registration of ownership documents, you can glean a lot of useful information about other products being developed and about competing manufacturers.

Protection of enterprise intellectual property

Piracy is only good when you download a new movie through a torrent tracker. But if an impudent competitor steals your trademark (which, in fact, is already strongly associated in the market with your company), it will not be easy to understand and forgive the scoundrel.

How to protect yourself from information intruders?

First, check how your company generally handles intellectual property. You'll be surprised how many intellectual assets you can discover if you look closely. Commercial designations? For sure. Utility models? Very likely. Know-how? Yes, absolutely there are at least a couple. At Russian enterprises the share intangible assets exceeds 50%, in companies developed countries – 60–70 %.
Determine whether it makes sense to obtain a patent for any technical solution (after which it will become publicly available) or whether it is better to stamp it as a trade secret and not reveal the essence to anyone. The fact is that those. solutions are not always understandable to competitors, but after patenting and publication, all developments will be “chewed up.” Perhaps it is better to consider such information as know-how? On the other hand, competitors are not sleeping. What if they also come up with the solution you found and register it first? It will be very disappointing.
If the benefits of patenting seem undoubted, obtain documents confirming the enterprise’s exclusive rights to the development. When registering inventions, industrial designs and utility models, a patent is issued. Trademarks, names, programs, microcircuit topologies and databases are given not a patent, but a certificate.
Regularly analyze the market for intellectual property rights violations. Evaluate how successful new trademarks, commercial designations, and brand names are. Are there plagiarists trying to grab a piece of the pie at the expense of more successful businesses? If such analysis is carried out systematically, you can quickly identify and stop almost any possible violation.
If you see that a threatening situation is being created regarding the intangible assets of your company, immediately involve professional lawyers. Stopping a violation is great, but without qualified support it’s impossible to cope with such a serious task. The situation is complicated by the fact that cases on the protection of intellectual property rights are in most cases very ambiguous. An ordinary lawyer will not handle them. Today, one after another, law firms are being created that specialize only in protecting the intellectual property of an enterprise - so you need to turn to them to defend your rights.

The judicial practice of protecting intellectual property can hardly be called comforting. Cases of this kind drag on for a long time, and both sides find more and more evidence of their innocence, which is often impossible to establish. The conclusion is simple: it is better to prevent violations immediately than to later compare developments and the time of their application, calculate the damage caused and seek compensation.

Intellectual property in the Russian Federation is subject to legal protection. Various authorities are responsible for its provision. There are quite a lot of regulations that include provisions for the protection of intellectual property. What are the features of the Russian legal system in this area?

Definition of Intellectual Property

What is "intellectual property"? It can be noted that not only in Russian, but also in world legal practice, this term was established relatively recently. Of course, the history of its use is long - according to popular historical estimates, it appeared in the 18th century.

However, as some experts note, the term received official status only in the 60s of the 20th century. This was facilitated, in particular, by the creation of an international public institution, one of the key competencies of which was the protection of intellectual property. What structure are we talking about? This is the World Intellectual Property Organization. And this, as many experts believe, was the first international precedent for the formation of a full-fledged structure of this type. At the level of the constituent norms of WIPO, the main objects of intellectual property were determined:

literary works, as well as artistic and scientific sources;
results of artists' activities, sound recordings, television programs, radio broadcasts;
inventions;
scientific discoveries;
results of industrial developments;
trademarks and other designations related to the commercial field.

It can be noted that at the time of the creation of the World Intellectual Property Organization, few people suspected how rapid the development of the computer industry would become. Therefore, in this “constituent” list there are no direct associations with computer programs, although some experts believe that in a number of provisions of the Stockholm Convention - one of the key WIPO documents, there are points that can be interpreted as relevant to products of intellectual work in the form computer programs. At the same time, in modern legislation of various countries, software, of course, is classified as an object of copyright.

It can also be noted historical fact: Despite the fact that the USSR participated in the establishment of the organization in question, the term “intellectual property” in the Soviet Union, as some experts note, was not widely used. Only during the years of Perestroika did initiatives appear in the country regarding the introduction of the corresponding term into legal circulation. Thus, in the Law “On Property”, adopted on March 6, 1990, the phrase “objects of intellectual property” appeared, thus correlating with inventions, scientific discoveries, works of literature and other creative products. Subsequently, the term in question was noted in the Constitution of the Russian Federation, as well as in the Civil Code of Russia.

Property or exclusive right?

The concept of intellectual property in Russian legal practice closely correlates with the term “exclusive right”. Some experts note that in the first editions of the Civil Code of the Russian Federation, these concepts were actually identified. At the same time, today's legislation reflects the exclusive right as one of many aspects of intellectual property. Although, as lawyers note, in practice these terms often carry almost identical meaning.

By publishing a literary work, the author immediately acquires two types of rights to it. One of them is exceptional. It allows, in particular, to use the result of creative work in a commercial aspect. However, the concept of intellectual property also includes the term “personal rights”. Which, in turn, are at the level Russian laws defined as non-property. Personal rights modern lawyers are classified within the following spectrum:

the right to be called the author of a product of intellectual work;
the right to inviolability of the result of creativity;
the ability to change the name indicated when publishing a product of creative work.

Thus, having given away or ceded an exclusive right on a commercial basis, the author of the work, nevertheless, does not lose his personal right, which can also be considered a full-fledged element of intellectual property.

The owner of the exclusive right by law has the right to publish this or that creative product indicating the name of the author. That is, if, for example, a web design studio ordered a website concept from a private specialist, then its subsequent publication, if the law is followed, must be carried out with reference to the name of the developer. This is how, in accordance with Russian legislation, the protection of intellectual property is carried out in the aspect of guaranteeing the inalienability of personal rights. Although, as many experts note, in practice this norm is not always observed.

At the same time, it should be noted that the exclusive right cannot belong to the author if he created a certain creative product, fulfilling an order in the process of implementation labor activity within the framework of an agreement drawn up in accordance with the norms of the Labor Code of the Russian Federation. All rights to the commercial use of the result of a person’s labor remain on the side of the employing company.

Personal law - outside corporations

The most important aspect should be noted - intellectual property in the aspect of personal law, according to the law, can only relate to individuals. Corporations can operate the products of creative labor, therefore, only in the format of exclusive rights. And this is another feature of Russian legislation (as well as many of its foreign models).

Property protection

Let's take a closer look at such an aspect as intellectual property protection. It may be noted that some lawyers prefer to distinguish this concept with another term - security. Experts believe that security activities in relation to intellectual property presuppose the predominant activity of law-making government structures that issue legal acts aimed at ensuring security legal rights authors of creative products. In turn, the protection of rights presupposes the primary activity of the executive and judicial structures of power in the form of a response to an actual violation of the law. Although many lawyers prefer to combine the two types of activities into a general category. A little later we will look in more detail at what mechanisms exist for the protection of intellectual property rights in Russia.

Specifics of objects of intellectual rights

What types of intellectual property can there be? Some lawyers identify a key criterion that makes it possible to record the belonging of a particular product of creative work to the objects in question. This is availability legislative provisions, which guarantee legal protection for a specific type of product. That is, in accordance with this point of view, intellectual property cannot be fully protected due to the fact that the essence of its objects is not properly enshrined in legislation.

As some lawyers believe, in practice, this state of affairs was observed in the Russian Federation in the 90s and early 2000s in relation, in particular, to computer programs. Legislation that would clearly characterize software as an object of intellectual property has been absent for a long time. And this, experts believe, has become one of the reasons for the spread of pirated versions of software in Russia through a variety of channels. The fact that, say, abroad certain objects are fixed in legislation does not matter if relevant legal acts have not been adopted in the Russian Federation, experts say.

Protection of intellectual rights: controversial aspects

Many lawyers believe that Russian legislation is still far from perfect in the area of intellectual property protection. That is, the ambiguity of criteria in terms of determining the object of copyright is not the only problematic nuance. Let's consider the corresponding aspect in more detail.

As you know, one of the key legal acts in accordance with which copyright protection was carried out was the Law of the Russian Federation No. 5351, adopted in 1993. According to lawyers, this legal act and the laws relevant to it did not make it possible to unambiguously identify a certain product of intellectual labor as a work subject to legal protection. That is, in practice, authors might have difficulty confirming their direct participation in the creation of a product of intellectual work. Instead of this Law of the Russian Federation, new provisions were introduced Civil Code. But they, as some lawyers believe, did not bring sufficient clarity to the problem area under consideration.

Experts believe that Russian sphere intellectual property is characterized by high dependence on judicial practice. That is, what is formulated in regulations, often requires further interpretation during the appropriate type of hearing. In accordance with what criteria do courts most often determine the person who created certain objects of intellectual property rights? Lawyers note that novelty and originality are among the basic ones. That is, if the author managed to prove in court that he wrote the book first, then he is recognized as having the right to protect the product of his work.

Legal mechanisms for protecting intellectual property

Despite the imperfection of legislation in the field of intellectual property recognized by a number of lawyers, legal system RF one way or another there are sufficiently formed legal mechanisms copyright protection. Let's consider the essence of some of them.

The main source of law for us will therefore be the Civil Code. Among the basic provisions of Russian legislation concerning the protection of intellectual rights is the provision of the Civil Code of the Russian Federation that copyright in any creative work does not require confirmation, that is, it arises immediately after the creation of a registered product.

In accordance with the current provisions of the Civil Code, the alleged copyright infringer must first prove the absence of guilt. Also, liability measures may be applied to persons who in one way or another controlled the actions of actual violators.

Concerning illegal actions in the field of intellectual property, which were committed on the Internet and other digital networks, then the provider who provided the technical ability for the actions of the violators may also be held liable.

Of interest are some provisions of the law governing how a person can manage intellectual property. So, for example, if a certain musical composition is published on the air of a radio station, then the right to a monetary reward will be retained not only by the composer who composed the melody, but also by other authors of the audio recording.

In this case, an option is possible in which the producer of the song (producer of the track) will receive the exclusive right to the corresponding product of intellectual work, unless otherwise provided by agreements concluded with the composer and other authors of the song.

Patents and licenses

Intellectual property, in accordance with the laws of the Russian Federation, also includes patented inventions. This area is regulated separate group laws. Another form of intellectual property protection that is fairly close to a patent, which is provided for by Russian legislation, is a license. It is used in areas such as software development, music, and the film industry.

Copyrights and trademarks

Also, Russian and international intellectual property can be protected through legal norms, involving the use of special graphic symbols, recording the fact of protection of the object of creative work by copyright. For example, this could be an easily recognizable copyright icon or, for example, a trademark that is registered in the prescribed manner.

Russian enterprises can protect their rights by registering their own brand names. By default, all business entities in the Russian Federation must have the corresponding attribute. However, only after they have registered it as part of the appropriate registration procedure can the name be subject to exclusive rights.

There is an independent government body whose competence is to ensure the protection of relevant rights: the Federal Service for Intellectual Property. This office is responsible for improving the effectiveness of copyright protection, as well as for developing legislative provisions relevant to its activities.

Penalties for violations

What are the penalties provided for by the laws of the Russian Federation for violation of the rights to use intellectual property?

Among the most significant, experts highlight the provision according to which the copyright holder, who discovers that his product of intellectual work is used outside provided by law norms, has the right to demand compensation for damages from the violator in judicial procedure. The amount of possible compensation varies from 10 thousand to 5 million rubles. Or it is charged in an amount twice the average cost of the right to use a product of creative labor of a similar type.