What is not protected by copyright?
Repeatedly in our blog we dwelt on copyright issues. And today, let's talk about things that are not covered. To know about them lately becomes more and more necessary.
The fact is that a modern copyright gives the right holder a very large amount of authority: he can petition the court for imposing arrest on “pirated” copies of works, demand “compensation”, the minimum size of which is limited to ten thousand rubles, and enjoy other minor privileges to which so rich is the fourth part of the Civil Code. Therefore, often in case of possible disputes, a potential claimant, considering his rights violated, declares them precisely “copyright”, having no reason to do so.
What is creativity?
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Let's start with the main criterion, which determines whether a work is subject to copyright protection: creativity. According to Article 1228 of the Civil Code, the author of the result of intellectual activity is “a citizen whose creative work has created such a result”. This criterion is common to all results of intellectual activity for which “authorship” is provided. In addition to works protected by copyright, it can be, for example, inventions.
Criterion of creativity is the most unobvious sign of a protected work. To say in advance whether it is created by creative labor or not, it is simply impossible: you must see it yourself. The joint ruling of the Supreme and Higher Arbitration Courts on the provisions of the fourth part of the Civil Code mentions the main criteria for the result of creative activity - this is novelty and originality: “When analyzing the question of whether a particular result is subject to copyright, the courts should take into account that articles 1228 , 1257 and 1259 of the Civil Code of the Russian Federation in their relationship such is only the result created by creative work. It should be borne in mind that until proven otherwise, the results of intellectual activity are assumed to be created by creative work. It should also be borne in mind that by itself the lack of novelty, uniqueness and (or) originality of the result of intellectual activity cannot indicate that such a result was not created by creative work and, therefore, is not subject to copyright. ”
One common misconception is connected with the lack of understanding of the role of creative work in copyright: that “old work” can be considered old, which is “changed to one third”. There are variants in which not “a third” appears, but “thirty percent”, “sixty percent” or some other value. Sometimes the deluded person appeals to the “law”, although the law itself does not name it. Of course, there is no such law.
The same resolution also deals with this issue: “The right to the inviolability of a work (paragraph one of clause 1 of Article 1266 of the Civil Code of the Russian Federation) concerns such changes to a work that are not related to the creation of a new work based on an existing one. Corresponding changes are allowed with the consent of the author (or other person in the case provided for in paragraph 2 of clause 1 of Article 1266 of the Code), which must be expressly stated. In the absence of evidence that consent has been expressly expressed, it is not considered obtained. Processing a work involves creating a new (derivative) work based on an existing one. ”
As we can see, the boundary between the “new” and the “not new” is determined by what happens to the “old” work — whether it is processed or its integrity is violated. "New" product will be in the event that processing wore a creative nature. Otherwise, it will be a “violation of immunity” prohibited by the Civil Code. No “interest” in the law and its interpretations given by the courts is mentioned. In addition, the Civil Code (the same article 1228) does not include among the co-authors the works of persons who only assisted the author (technical, consulting, organizational or material), but did not themselves contribute creatively to the creation of the work.
“Assistance” is very similar to “violation of immunity” in that it is not of a creative nature. As a general rule, it is assumed that any work is the result of creative activity, the opposite will have to be proved. However, there are situations when it makes sense to presume the absence of creativity: for example, the forum correspondence most likely does not contain any creativity, but is merely “informational messages”. Here we will talk about them further.
Right to information
Here we need to go to article 1259 of the civil code, which describes what is protected by copyright, and also contains a list of unguarded objects. Along with official documents, state symbols and works of folk art, the sixth paragraph of the article refers to the unguarded “messages about events and facts that are of an informational nature only.”
We have already examined in detail the issue of delimitation of the scope of the Civil Code from the Law “On Information, Information Technologies and Information Protection”, which regulates the distribution of informational materials, so that if you have not read that article, you can do it .
The main purpose of informational messages is to convey some information to the reader; therefore, they do not use any methods typical of ordinary works. As a rule, the texts of such messages are written using ordinary narrative sentences, in the "official" style, without hyperbole, comparisons and other flight of fancy. But when such artistic techniques in the message were still used, it may well be protected by copyright.
The sphere in which such messages are most common is the activity of various kinds of news agencies. Not surprisingly, it is agencies that most often initiate the “copying” of news. For example, the Associated Press is struggling with technical methods, in Belgium - they are judged , and in Russia - sometimes too.
One of the most active in this matter is RIA “Novosti”: firstly, it is in every way ashamed of “thieves” in one of the sections of its website, which is called “Checked: plagiarism”. Although it is not clear how the use of materials, most of which are not protected by copyright, can be a “plagiarism”.
All that can be talked about in cases similar to those described in this section is a violation of the Law “On Information ...”, which requires using the information to indicate its source. Secondly, in its struggle for news, RIAN went even further and became the author of the bill , which proposed to change the legal regime of news reports and introduce limited copyright protection for them. It was the year before last and since then nothing has been heard about the project.
Such initiatives are usually accompanied by allegations that such uncontrolled copying of news deprives agencies of income. But it is completely incomprehensible how, with such looting, agencies manage to be almost the most frequently mentioned companies on the Internet. And they still manage: according to the company “Webscan”, which is engaged in the compilation of such ratings, if in 2005 the programmers and power engineers were in the lead by mentioning companies, then in 2006 , 2007 , 2008 and the “pedestal” turned out to be firmly occupied by information agencies. It seems that something is exaggerated: either the scale of “unlicensed copying”, or the effect of it.
Another area in which information is successfully “copied” is cartography. We have already written about copyright protection of satellite images and maps, which are just “informational materials”, only the information in them is presented in graphical form, and not in text, as in the news reports. In general, there is a strange situation with the cards. Some of them may be the result of creative activity: use some non-standard notation, drawing up techniques, and the like. But most of the cards are drawn up according to strictly defined rules, which limits the possibility of any creativity. And even if the creator of the map deviates from such rules, then this is not enough for creativity: the result should have “originality”, and not be some ordinary technique that everyone uses.
However, the activities of the domestic Federal Service for State Registration, Cadastre and Cartography (“Rosreestra”) are aimed precisely at making everyone pay for the use of cartographic information, even in cases where the Rosreestr is absolutely not involved in the map. The position of Rosreestr boils down to the fact that, since "geographical, geological and other maps" are mentioned in article 1259 of the Civil Code as works protected by copyright, this is enough to impose a tribute to all independent cartographers. The fact that there is a general principle of the protection of "intellectual property", which associates the authorship of the work with creative activity, is somehow forgotten by representatives of this organization.
As a result, it becomes easier for card makers to pay than to contact.
I have an idea?
In addition, Article 1259 (clause 5) mentions another group of unprotected objects: “Copyright does not apply to ideas, concepts, principles, methods, processes, systems, methods, solutions of technical, organizational or other tasks, discoveries, facts, languages programming. ”This follows logically from the third paragraph of the article, which extends protection to works,“ expressed in any objective form. ” Ideas, concepts and other things listed above do not have an objective form of expression, although they can be used when creating works: for example, using a programming language you can write a program - and now it will be protected.
Attempts to appeal to the “copyright on an idea” are made regularly, as a rule, people who have the farthest idea about copyright do this. Well, what to do: here our homegrown geniuses have such a thing: “to sell the idea”, with the money to buy an island and move there to live. No, it will not work: without implementation, the idea is worth nothing . However, when we decide how to separate the “idea” from the “work” itself, we, as in the case of “creative activity”, will have to analyze this work in detail.
Here, for example, a recent incident with the "cloning" of one of the online games. What was borrowed in this case? The very idea of ​​such a game? Or some general principles? Or a combination of these principles? Or even part of the source code? What happened in this case - borrowing unguarded ideas and principles, or reworking the game, and using its characters and logic? Or maybe even plagiarism? All these questions can not be answered without analyzing the game code and the logic of its action.
Another common misconception is that copyright can be used to prohibit the use of any transmission protocol or data. For example, the owners of the popular instant messaging service ICQ have announced their intention to "license" the clients of alternative programs using the ICQ protocol. Starting with the program Nimbuzz, they now agree with the rest. Since the details of the agreements were not disclosed, it is not known whether copyright appeals are used in this case, but this option is not excluded. But the data transfer protocol is the “way” of their presentation, which cannot be protected by copyright in principle.
There are a lot of situations where the data format of a single program is read by a “competitor” program (for example, take the same office packages, but it never occurred to the developers of this format to forbid such actions. Attempts to distribute copyright without prior permission to the fact that this right is not protected are dangerous primarily because they restrict the already severely curtailed rights to the free use of information. Attempts like this must be resisted in every possible way.
The fact is that a modern copyright gives the right holder a very large amount of authority: he can petition the court for imposing arrest on “pirated” copies of works, demand “compensation”, the minimum size of which is limited to ten thousand rubles, and enjoy other minor privileges to which so rich is the fourth part of the Civil Code. Therefore, often in case of possible disputes, a potential claimant, considering his rights violated, declares them precisely “copyright”, having no reason to do so.
What is creativity?
')
Let's start with the main criterion, which determines whether a work is subject to copyright protection: creativity. According to Article 1228 of the Civil Code, the author of the result of intellectual activity is “a citizen whose creative work has created such a result”. This criterion is common to all results of intellectual activity for which “authorship” is provided. In addition to works protected by copyright, it can be, for example, inventions.
Criterion of creativity is the most unobvious sign of a protected work. To say in advance whether it is created by creative labor or not, it is simply impossible: you must see it yourself. The joint ruling of the Supreme and Higher Arbitration Courts on the provisions of the fourth part of the Civil Code mentions the main criteria for the result of creative activity - this is novelty and originality: “When analyzing the question of whether a particular result is subject to copyright, the courts should take into account that articles 1228 , 1257 and 1259 of the Civil Code of the Russian Federation in their relationship such is only the result created by creative work. It should be borne in mind that until proven otherwise, the results of intellectual activity are assumed to be created by creative work. It should also be borne in mind that by itself the lack of novelty, uniqueness and (or) originality of the result of intellectual activity cannot indicate that such a result was not created by creative work and, therefore, is not subject to copyright. ”
One common misconception is connected with the lack of understanding of the role of creative work in copyright: that “old work” can be considered old, which is “changed to one third”. There are variants in which not “a third” appears, but “thirty percent”, “sixty percent” or some other value. Sometimes the deluded person appeals to the “law”, although the law itself does not name it. Of course, there is no such law.
The same resolution also deals with this issue: “The right to the inviolability of a work (paragraph one of clause 1 of Article 1266 of the Civil Code of the Russian Federation) concerns such changes to a work that are not related to the creation of a new work based on an existing one. Corresponding changes are allowed with the consent of the author (or other person in the case provided for in paragraph 2 of clause 1 of Article 1266 of the Code), which must be expressly stated. In the absence of evidence that consent has been expressly expressed, it is not considered obtained. Processing a work involves creating a new (derivative) work based on an existing one. ”
As we can see, the boundary between the “new” and the “not new” is determined by what happens to the “old” work — whether it is processed or its integrity is violated. "New" product will be in the event that processing wore a creative nature. Otherwise, it will be a “violation of immunity” prohibited by the Civil Code. No “interest” in the law and its interpretations given by the courts is mentioned. In addition, the Civil Code (the same article 1228) does not include among the co-authors the works of persons who only assisted the author (technical, consulting, organizational or material), but did not themselves contribute creatively to the creation of the work.
“Assistance” is very similar to “violation of immunity” in that it is not of a creative nature. As a general rule, it is assumed that any work is the result of creative activity, the opposite will have to be proved. However, there are situations when it makes sense to presume the absence of creativity: for example, the forum correspondence most likely does not contain any creativity, but is merely “informational messages”. Here we will talk about them further.
Right to information
Here we need to go to article 1259 of the civil code, which describes what is protected by copyright, and also contains a list of unguarded objects. Along with official documents, state symbols and works of folk art, the sixth paragraph of the article refers to the unguarded “messages about events and facts that are of an informational nature only.”
We have already examined in detail the issue of delimitation of the scope of the Civil Code from the Law “On Information, Information Technologies and Information Protection”, which regulates the distribution of informational materials, so that if you have not read that article, you can do it .
The main purpose of informational messages is to convey some information to the reader; therefore, they do not use any methods typical of ordinary works. As a rule, the texts of such messages are written using ordinary narrative sentences, in the "official" style, without hyperbole, comparisons and other flight of fancy. But when such artistic techniques in the message were still used, it may well be protected by copyright.
The sphere in which such messages are most common is the activity of various kinds of news agencies. Not surprisingly, it is agencies that most often initiate the “copying” of news. For example, the Associated Press is struggling with technical methods, in Belgium - they are judged , and in Russia - sometimes too.
One of the most active in this matter is RIA “Novosti”: firstly, it is in every way ashamed of “thieves” in one of the sections of its website, which is called “Checked: plagiarism”. Although it is not clear how the use of materials, most of which are not protected by copyright, can be a “plagiarism”.
All that can be talked about in cases similar to those described in this section is a violation of the Law “On Information ...”, which requires using the information to indicate its source. Secondly, in its struggle for news, RIAN went even further and became the author of the bill , which proposed to change the legal regime of news reports and introduce limited copyright protection for them. It was the year before last and since then nothing has been heard about the project.
Such initiatives are usually accompanied by allegations that such uncontrolled copying of news deprives agencies of income. But it is completely incomprehensible how, with such looting, agencies manage to be almost the most frequently mentioned companies on the Internet. And they still manage: according to the company “Webscan”, which is engaged in the compilation of such ratings, if in 2005 the programmers and power engineers were in the lead by mentioning companies, then in 2006 , 2007 , 2008 and the “pedestal” turned out to be firmly occupied by information agencies. It seems that something is exaggerated: either the scale of “unlicensed copying”, or the effect of it.
Another area in which information is successfully “copied” is cartography. We have already written about copyright protection of satellite images and maps, which are just “informational materials”, only the information in them is presented in graphical form, and not in text, as in the news reports. In general, there is a strange situation with the cards. Some of them may be the result of creative activity: use some non-standard notation, drawing up techniques, and the like. But most of the cards are drawn up according to strictly defined rules, which limits the possibility of any creativity. And even if the creator of the map deviates from such rules, then this is not enough for creativity: the result should have “originality”, and not be some ordinary technique that everyone uses.
However, the activities of the domestic Federal Service for State Registration, Cadastre and Cartography (“Rosreestra”) are aimed precisely at making everyone pay for the use of cartographic information, even in cases where the Rosreestr is absolutely not involved in the map. The position of Rosreestr boils down to the fact that, since "geographical, geological and other maps" are mentioned in article 1259 of the Civil Code as works protected by copyright, this is enough to impose a tribute to all independent cartographers. The fact that there is a general principle of the protection of "intellectual property", which associates the authorship of the work with creative activity, is somehow forgotten by representatives of this organization.
As a result, it becomes easier for card makers to pay than to contact.
I have an idea?
In addition, Article 1259 (clause 5) mentions another group of unprotected objects: “Copyright does not apply to ideas, concepts, principles, methods, processes, systems, methods, solutions of technical, organizational or other tasks, discoveries, facts, languages programming. ”This follows logically from the third paragraph of the article, which extends protection to works,“ expressed in any objective form. ” Ideas, concepts and other things listed above do not have an objective form of expression, although they can be used when creating works: for example, using a programming language you can write a program - and now it will be protected.
Attempts to appeal to the “copyright on an idea” are made regularly, as a rule, people who have the farthest idea about copyright do this. Well, what to do: here our homegrown geniuses have such a thing: “to sell the idea”, with the money to buy an island and move there to live. No, it will not work: without implementation, the idea is worth nothing . However, when we decide how to separate the “idea” from the “work” itself, we, as in the case of “creative activity”, will have to analyze this work in detail.
Here, for example, a recent incident with the "cloning" of one of the online games. What was borrowed in this case? The very idea of ​​such a game? Or some general principles? Or a combination of these principles? Or even part of the source code? What happened in this case - borrowing unguarded ideas and principles, or reworking the game, and using its characters and logic? Or maybe even plagiarism? All these questions can not be answered without analyzing the game code and the logic of its action.
Another common misconception is that copyright can be used to prohibit the use of any transmission protocol or data. For example, the owners of the popular instant messaging service ICQ have announced their intention to "license" the clients of alternative programs using the ICQ protocol. Starting with the program Nimbuzz, they now agree with the rest. Since the details of the agreements were not disclosed, it is not known whether copyright appeals are used in this case, but this option is not excluded. But the data transfer protocol is the “way” of their presentation, which cannot be protected by copyright in principle.
There are a lot of situations where the data format of a single program is read by a “competitor” program (for example, take the same office packages, but it never occurred to the developers of this format to forbid such actions. Attempts to distribute copyright without prior permission to the fact that this right is not protected are dangerous primarily because they restrict the already severely curtailed rights to the free use of information. Attempts like this must be resisted in every possible way.
Source: https://habr.com/ru/post/115200/
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