Why copyright is unconstitutional
Disclaimer. I draw attention to the fact that I am not making any value judgments at the moment and are not proposing any solutions. I just set out the facts.
I already once wrote that copyright is illegitimate . This is not all. Copyright is also unconstitutional, as contrary to the basic principles of law.
As a fairly advanced online community, Habr, in principle, supports copyright, because The author must have some way of monetizing his own labor. The logic here is approximately the following: the author creates the copyright of the work. At this point, he has all the possible rights to order them. In particular, he has the right to conclude an agreement with the publisher on the transfer of this copy and his rights for some material benefits. The publisher makes copies of the copy and sells them to end users, also entering into some kind of contract with each of them.
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Now the system usually works like this: copy-pieces are sold by the piece without the right of further distribution; those who violate the terms of the contract - distribute copies further, for money or for free - pirates.
Thus, at first glance, the relationship of the author, publisher, and buyers is reduced to the usual civil law contracts of sale (well, or "rent", as it has become fashionable to do lately). In fact, it is not.
The attentive reader will immediately notice the inconsistency: if copyrights can be regulated simply by ordinary civil law contracts, then why do we need some kind of separate copyright?
But why? Suppose that citizen A bought a copy of the work (entered into an agreement with the publisher), but violated his obligations and put it in open access. Citizen B was very happy about this and joined the distribution. Does the publisher have the right to make any claims to citizen B?
In terms of civil law, no. The publisher can have no complaints about B, because B is not bound to it by any obligation. Art. 308 p. 3:
If you go to the real analogies, then let A stole the car from the publisher and sold (donated) it to B. The deal between A and B will be invalidated, the car will be returned to the publisher. Now imagine that the publisher would demand with B to pay for all the lost profit, which he would receive from the calculation that, using a machine, he would make 10 transactions per day, $ 100 each. Nonsense? Nevertheless, the principle of innocent responsibility for copyright infringement asserts precisely such a right of the holder of exclusive rights, interpreting “not receiving benefit” as “causing harm”.
Further, unlike the purchase of a stolen car, copyright infringement is a criminal offense, in relation to which, in fact, the presumption of guilt acts. In fact, it is IMPOSSIBLE to prove that B knew about the illegality of the actions of A: this requires proof that B saw the contract concluded between A and the publisher. Moreover, B had to see all the agreements concluded between A and the publisher and make sure that none of them gave A the right to distribute the AP.
Believe me, I'm exaggerating? Not at all. Recently, there was a scandal on the Internet: a certain young artist found out that a large retail chain had placed her drawing on company packages without asking for it and intended to sue. My own thought went the other way: all buyers of this corporate package are guilty of violating the AP (public demonstration of the AP object) on a large scale (the price of a copy * the number of people who saw it for free) and thus committed a criminal offense. In fact, didn’t they know that a large distribution network might not have rights to distribute this pattern? What is the difference between distributing a torrent and buying a package in a store? The fact that torrents usually violate the rights, and the shops - no? Sorry, according to what principles should the buyer assess the likelihood of copyright infringement by the seller? By the way, I suspect that large retail chains violate copyrights no less than thepiratebay.
Thus, in its current form, the law clearly dictates B to independently find out the legality of the origin of his copy of AP, regardless of whether A. was sent to him. For this, it turns out B must find out in each case the content of the contract between the seller and the owner of rights - and this is no guarantee of legality, because the publisher and A can at any time terminate their contract, automatically making B a criminal!
Here the situation becomes finally unconstitutional.
Firstly, the content of the contracts between the seller and the owner of the rights is a commercial secret. It turns out, B is obliged to know all the trade secrets of the owner of rights, and to continue to monitor their content all the time while using the object of the AP.
Thus, the content of the contract between the author and the publisher, in fact, acquires the force of law. If, according to this agreement, users have the right to distribute the PA, all citizens of the state are automatically vested with this right. And vice versa, if distribution is prohibited - all citizens are automatically vested with the duty not to use the AP object that fell into them against the author’s will, regardless of the conditions under which they received a copy of the AP. If the author terminates the contract with the publisher, all citizens automatically lose part of their rights.
The creation of any PA object is directly equivalent to the publication of a new law in the sense of the implications for the rights and obligations of citizens. Which directly contradicts the Constitution, since according to art. 15 p. 3, "Laws are subject to official publication. Unpublished laws do not apply." - this is not mentioning the fact that the only source of power (including legislative) is the people.
Further, more fun. The right to independently establish the law is transferred not only to authors, but also to their descendants - which turns this right into a privilege. As someone wittily joked in the next topic - in fact, it is about how the inheritance of the right to free travel in public transport.
However, this fact is not hidden by anyone - copyright is an exclusive right and a limited monopoly by definition (Bill of Rights, Article 9: “Monopolies”). for a term not exceeding - years. In Russian legislation, AP is not called a monopoly explicitly, since it would contradict the Constitution of the Russian Federation, art. 34: "Economic activities aimed at monopolization are not allowed." However, no matter how you call it, it still remains a monopoly.
Now secondly. From the definitions given in the Civil Code of the Russian Federation, in fact, it follows that absolutely any object can be the subject of an AP. In fact, the original design of the plastic bag can be patented, and the original print on the lighter can be protected by the AP. The basis of any useful subject is a certain principle of the embodiment of the idea and a certain creative effort to design it - and, therefore, the non-constitutional duty to ascertain the legal status is vested in you in relation to absolutely any object that you intend to use not only for personal purposes (for example, publicly show) - see an example about a package from a supermarket.
Total: modern copyright law violates fundamental constitutional principles (not to mention the civil code and such trifles as common sense) in almost every provision. This reasoning is clearly applicable not only to the Russian, but also to any foreign legislation in the field of the protection of PA. The problems of the implementation of the AP lie not in the imperfection of the law, but in the principle of copyright construction as such - these contradictions are inherent in the concept of “intellectual property” by design. That is why we are seeing a continuous and continuous expansion of the zone of action of the AP. Tell someone 50 years ago that they would have to pay to turn on the radio in a cafe - they would laugh at you; or, for example, that when buying plant seeds, you do not buy the right to continue using them for the next year and are obliged to renew the license every time. The scope of copyright is potentially endless, as the law on derivative works allows you to place the principles and ideas that have long fallen into public domain.
I already once wrote that copyright is illegitimate . This is not all. Copyright is also unconstitutional, as contrary to the basic principles of law.
As a fairly advanced online community, Habr, in principle, supports copyright, because The author must have some way of monetizing his own labor. The logic here is approximately the following: the author creates the copyright of the work. At this point, he has all the possible rights to order them. In particular, he has the right to conclude an agreement with the publisher on the transfer of this copy and his rights for some material benefits. The publisher makes copies of the copy and sells them to end users, also entering into some kind of contract with each of them.
')
Now the system usually works like this: copy-pieces are sold by the piece without the right of further distribution; those who violate the terms of the contract - distribute copies further, for money or for free - pirates.
Thus, at first glance, the relationship of the author, publisher, and buyers is reduced to the usual civil law contracts of sale (well, or "rent", as it has become fashionable to do lately). In fact, it is not.
The attentive reader will immediately notice the inconsistency: if copyrights can be regulated simply by ordinary civil law contracts, then why do we need some kind of separate copyright?
But why? Suppose that citizen A bought a copy of the work (entered into an agreement with the publisher), but violated his obligations and put it in open access. Citizen B was very happy about this and joined the distribution. Does the publisher have the right to make any claims to citizen B?
In terms of civil law, no. The publisher can have no complaints about B, because B is not bound to it by any obligation. Art. 308 p. 3:
The obligation does not create obligations for persons not participating in it as parties (for third parties).
If you go to the real analogies, then let A stole the car from the publisher and sold (donated) it to B. The deal between A and B will be invalidated, the car will be returned to the publisher. Now imagine that the publisher would demand with B to pay for all the lost profit, which he would receive from the calculation that, using a machine, he would make 10 transactions per day, $ 100 each. Nonsense? Nevertheless, the principle of innocent responsibility for copyright infringement asserts precisely such a right of the holder of exclusive rights, interpreting “not receiving benefit” as “causing harm”.
Further, unlike the purchase of a stolen car, copyright infringement is a criminal offense, in relation to which, in fact, the presumption of guilt acts. In fact, it is IMPOSSIBLE to prove that B knew about the illegality of the actions of A: this requires proof that B saw the contract concluded between A and the publisher. Moreover, B had to see all the agreements concluded between A and the publisher and make sure that none of them gave A the right to distribute the AP.
Believe me, I'm exaggerating? Not at all. Recently, there was a scandal on the Internet: a certain young artist found out that a large retail chain had placed her drawing on company packages without asking for it and intended to sue. My own thought went the other way: all buyers of this corporate package are guilty of violating the AP (public demonstration of the AP object) on a large scale (the price of a copy * the number of people who saw it for free) and thus committed a criminal offense. In fact, didn’t they know that a large distribution network might not have rights to distribute this pattern? What is the difference between distributing a torrent and buying a package in a store? The fact that torrents usually violate the rights, and the shops - no? Sorry, according to what principles should the buyer assess the likelihood of copyright infringement by the seller? By the way, I suspect that large retail chains violate copyrights no less than thepiratebay.
Thus, in its current form, the law clearly dictates B to independently find out the legality of the origin of his copy of AP, regardless of whether A. was sent to him. For this, it turns out B must find out in each case the content of the contract between the seller and the owner of rights - and this is no guarantee of legality, because the publisher and A can at any time terminate their contract, automatically making B a criminal!
Here the situation becomes finally unconstitutional.
Firstly, the content of the contracts between the seller and the owner of the rights is a commercial secret. It turns out, B is obliged to know all the trade secrets of the owner of rights, and to continue to monitor their content all the time while using the object of the AP.
Thus, the content of the contract between the author and the publisher, in fact, acquires the force of law. If, according to this agreement, users have the right to distribute the PA, all citizens of the state are automatically vested with this right. And vice versa, if distribution is prohibited - all citizens are automatically vested with the duty not to use the AP object that fell into them against the author’s will, regardless of the conditions under which they received a copy of the AP. If the author terminates the contract with the publisher, all citizens automatically lose part of their rights.
The creation of any PA object is directly equivalent to the publication of a new law in the sense of the implications for the rights and obligations of citizens. Which directly contradicts the Constitution, since according to art. 15 p. 3, "Laws are subject to official publication. Unpublished laws do not apply." - this is not mentioning the fact that the only source of power (including legislative) is the people.
Further, more fun. The right to independently establish the law is transferred not only to authors, but also to their descendants - which turns this right into a privilege. As someone wittily joked in the next topic - in fact, it is about how the inheritance of the right to free travel in public transport.
However, this fact is not hidden by anyone - copyright is an exclusive right and a limited monopoly by definition (Bill of Rights, Article 9: “Monopolies”). for a term not exceeding - years. In Russian legislation, AP is not called a monopoly explicitly, since it would contradict the Constitution of the Russian Federation, art. 34: "Economic activities aimed at monopolization are not allowed." However, no matter how you call it, it still remains a monopoly.
Now secondly. From the definitions given in the Civil Code of the Russian Federation, in fact, it follows that absolutely any object can be the subject of an AP. In fact, the original design of the plastic bag can be patented, and the original print on the lighter can be protected by the AP. The basis of any useful subject is a certain principle of the embodiment of the idea and a certain creative effort to design it - and, therefore, the non-constitutional duty to ascertain the legal status is vested in you in relation to absolutely any object that you intend to use not only for personal purposes (for example, publicly show) - see an example about a package from a supermarket.
Total: modern copyright law violates fundamental constitutional principles (not to mention the civil code and such trifles as common sense) in almost every provision. This reasoning is clearly applicable not only to the Russian, but also to any foreign legislation in the field of the protection of PA. The problems of the implementation of the AP lie not in the imperfection of the law, but in the principle of copyright construction as such - these contradictions are inherent in the concept of “intellectual property” by design. That is why we are seeing a continuous and continuous expansion of the zone of action of the AP. Tell someone 50 years ago that they would have to pay to turn on the radio in a cafe - they would laugh at you; or, for example, that when buying plant seeds, you do not buy the right to continue using them for the next year and are obliged to renew the license every time. The scope of copyright is potentially endless, as the law on derivative works allows you to place the principles and ideas that have long fallen into public domain.
Source: https://habr.com/ru/post/148337/
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