How to increase compensation for violation of intellectual rights several times? Life hacking
The creative method of increasing compensation for copyright and trademark infringements is used by the copyright holders of the animated series Masha and the Bear and other popular cartoons.
The judges complain that they were bombarded with lawsuits about smeshariki and other seals. This is understandable, the rights to "Masha and the Bear", "Smeshariki" and other popular cartoons violate all and sundry. Manufacturers of consumer goods think that if you place characters on their product, it will sell better. The right holders of the cartoons themselves are sure of this and are running after the violators in all the shops and markets.
The problem is that the minimum compensation for copyright infringement is 10 thousand rubles. And the courts, as a rule, do not appoint more for one violation, although the ceiling is potentially 5 million.
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Copyright holders want more - and they showed ingenuity.
Creative approach to increase the amount of compensation was quite simple. Right holders began to demand compensation not for one violation of the right to a cartoon, but for several violations at once, but for each individual character. If on the notebook (briefcase, ruler, pencil case, T-shirt) right holders see several characters “Masha”, “Bear”, “Bear”, “Hare”, “Hedgehog”, “Wolf” and “Belka”, then no longer 10 Thousands of compensation for violation of the rights to the cartoon, and 70 thousand for violation of the rights to each character. Here is an animation, sorry for the pun.
(if you are not interested in the boring legal component, immediately at the end of the article to the conclusions)
In fact, the issue is fundamentally not completely resolved. The case passed all instances to the Supreme Court and went to the second round of consideration. Recently, the court of first instance made a new decision. But about him later, first tell you what the essence of the dispute.
In the case under review, the courts work out the criteria for deciding whether the unlawful use of several parts of one work at once is considered one offense or several independent violations of the rights to each part of the work?
Who benefits from this or that position is understandable. The rightholders will get a real opportunity to receive at times more compensation.
Note : from 10/01/2014 according to the norm of Clause 3, Article. 1252 of the Civil Code of the Russian Federation, the total amount of compensation for violation of rights to several results of intellectual activity in the event that they belong to the same holder of rights may be reduced. However, the total amount of such compensation, taking into account the nature and consequences of the violation, cannot be less than 50% of the sum of the minimum amounts of all compensations for the violations committed. That is - there is a sense to fight, and it is tangible.
The rightholder asked for minimum compensation for the illegal use of not the work as a whole, but each of the seven characters in the animated series Masha and the Bear as independent parts of the work. The courts of first and appeal instances agreed with the position of the plaintiff. This allowed not to award 10 thousand rubles. for violation of rights to one work, and 70 thousand rubles. compensation for violations of the rights to the entire zoo.
The Court of Intellectual Property Rights (CIP) expressed the opposite view of the ratio of the part and the whole. In its ruling, the court of cassation indicated that the unlawful use of a part of a work (character), even if it is an independent object of civil circulation, means a violation of the exclusive right to the audiovisual work itself, since the use of the work is actually a way of using its part. Consequently, the illegal use of several parts (characters) of a single work constitutes one violation of the exclusive right to the work itself. Thus, CIP seems to have closed the shop for copyright holders to multiply compensation.
But the Judicial Board on Economic Disputes of the RF Armed Forces canceled the CIP resolution and sent the case for a new review. The panel concluded that the CIP and the courts of first and appeal instances did not determine whether the grounds for recognizing the characters of the audiovisual work “Masha and the Bear” as its characters were fragments from the said series with their image - parts of the work as copyright objects rights in accordance with paragraph 7 of Art. 1259 of the Civil Code. The absence of such an assessment does not allow to determine the objects of copyright in respect of which the defendant committed a violation, the nature of the violation, and, accordingly, the amount of compensation to be recovered under Art. 1301 of the Civil Code.
To protect its rights, the plaintiff used the rule of law (clause 7 of article 1259 of the Civil Code of the Russian Federation), according to which copyright applies to part of the work, its name, character, if by its nature they can be recognized as an independent result of the author's creative work.
According to the sub. 1 p. 1 Art. 1270 of the Civil Code of the Russian Federation using the work regardless of whether the corresponding actions are taken for profit or without such a goal, it is considered, in particular, to reproduce the work, ie making one or more copies of a work or its part in any material form. Thus, the production of a part of a work is the use of the work itself.
According to paragraph 1 of Art. 1229 of the Civil Code of the Russian Federation, other persons may not use the relevant result of intellectual activity or means of individualization without the consent of the copyright holder. It is illegal and punishable. In Art. 1301 of the Civil Code of the Russian Federation, which establishes liability for violation of exclusive rights to a work, including in the form of compensation in the amount of 10 thousand rubles and more. up to 5 million rubles, determined by the court on the basis of the nature of the violation, part of the work is not mentioned as an independent object of protection.
The courts unanimously recognized the cartoon characters as independent results of creative work. However, on the issue of protection of rights to several characters in the composition of a single work, the opinions of the judges were divided. The courts of first and appeal instances broadly interpreted the law and gave protection to each animal as part of a work, without taking into account that the violation of the rights to each of them is a violation of the right to one work. SIP paid attention to this fact and considered it wrong to exact compensation for each part of a single work.
The law does not contain an unambiguous regulation of the issue of protection of rights to separate independent parts of a single work. The courts attempted to provide criteria for establishing fair compensation in this case.
The courts of the first and appeal instances agreed with the claimant’s opinion and used the formula “one character - one violation”. Although, following this logic, in addition to compensation for each character it was necessary to seek compensation for violation of the right to work as a whole. In this case, the formula would be the following: “one character - one violation of the right to a character and a violation of the right to the work itself”.
CIP proposed another formula: “one work - one violation”, regardless of how many characters were illegally used. When applying this formula, the law is not interpreted broadly and the logic of using part of a work as using the work itself does not allow awarding compensation for infringing the rights to several parts of a single work as infringing the rights to separate independent objects of copyright. The logic of the law is that when using part of the work, the offender can also be brought to justice. Otherwise, all the violators would use only a part of the works and would calmly leave about responsibility: “But I didn’t redraw the whole cartoon into a notebook!”.
The Judicial Panel on Economic Disputes of the Armed Forces of the Russian Federation (Determination No. 309-ES14-7875 of June 11, 2015) did not consider the findings of the Court on intellectual property rights in accordance with the law. Consequently, the criteria for determining the boundaries of copyright protection in such disputes have not yet been definitively established.
The court of first instance, when reconsidering, awarded 10 thousand for each character. Here you can see the whole cartoon nursery right in the court decision.
Thus, the violation of animation while winning! We'll see what happens when we review it again in the following instances.
The most interesting is how it can be useful to us?
If you show imagination, then we can multiply violations anywhere!
Have you stolen a website design? We file a lawsuit not for violation of the rights to the entire site, but for each photo and each article, each logo, etc.
The program uses several interfaces, original icons, etc. - we file a lawsuit not for the protection of rights to the program entirely, but for each independent element.
Want to get more money for trademark infringement? Register more trademarks and file a lawsuit not only for infringing the rights to the trademark, but also for infringing the rights to the copyright object.
A good example of protecting rights is the Baby Club logo.
Leave your calculations in the comments. I wonder who will first justify the correct answer.
(c) Kirill Mityagin
The judges complain that they were bombarded with lawsuits about smeshariki and other seals. This is understandable, the rights to "Masha and the Bear", "Smeshariki" and other popular cartoons violate all and sundry. Manufacturers of consumer goods think that if you place characters on their product, it will sell better. The right holders of the cartoons themselves are sure of this and are running after the violators in all the shops and markets.
The problem is that the minimum compensation for copyright infringement is 10 thousand rubles. And the courts, as a rule, do not appoint more for one violation, although the ceiling is potentially 5 million.
')
Copyright holders want more - and they showed ingenuity.
Creative approach to increase the amount of compensation was quite simple. Right holders began to demand compensation not for one violation of the right to a cartoon, but for several violations at once, but for each individual character. If on the notebook (briefcase, ruler, pencil case, T-shirt) right holders see several characters “Masha”, “Bear”, “Bear”, “Hare”, “Hedgehog”, “Wolf” and “Belka”, then no longer 10 Thousands of compensation for violation of the rights to the cartoon, and 70 thousand for violation of the rights to each character. Here is an animation, sorry for the pun.
Is that fair to you? Let's first understand the essence of the dispute
(if you are not interested in the boring legal component, immediately at the end of the article to the conclusions)
In fact, the issue is fundamentally not completely resolved. The case passed all instances to the Supreme Court and went to the second round of consideration. Recently, the court of first instance made a new decision. But about him later, first tell you what the essence of the dispute.
In the case under review, the courts work out the criteria for deciding whether the unlawful use of several parts of one work at once is considered one offense or several independent violations of the rights to each part of the work?
Who benefits from this or that position is understandable. The rightholders will get a real opportunity to receive at times more compensation.
Note : from 10/01/2014 according to the norm of Clause 3, Article. 1252 of the Civil Code of the Russian Federation, the total amount of compensation for violation of rights to several results of intellectual activity in the event that they belong to the same holder of rights may be reduced. However, the total amount of such compensation, taking into account the nature and consequences of the violation, cannot be less than 50% of the sum of the minimum amounts of all compensations for the violations committed. That is - there is a sense to fight, and it is tangible.
The positions of the courts: opinions are divided
The rightholder asked for minimum compensation for the illegal use of not the work as a whole, but each of the seven characters in the animated series Masha and the Bear as independent parts of the work. The courts of first and appeal instances agreed with the position of the plaintiff. This allowed not to award 10 thousand rubles. for violation of rights to one work, and 70 thousand rubles. compensation for violations of the rights to the entire zoo.
The Court of Intellectual Property Rights (CIP) expressed the opposite view of the ratio of the part and the whole. In its ruling, the court of cassation indicated that the unlawful use of a part of a work (character), even if it is an independent object of civil circulation, means a violation of the exclusive right to the audiovisual work itself, since the use of the work is actually a way of using its part. Consequently, the illegal use of several parts (characters) of a single work constitutes one violation of the exclusive right to the work itself. Thus, CIP seems to have closed the shop for copyright holders to multiply compensation.
But the Judicial Board on Economic Disputes of the RF Armed Forces canceled the CIP resolution and sent the case for a new review. The panel concluded that the CIP and the courts of first and appeal instances did not determine whether the grounds for recognizing the characters of the audiovisual work “Masha and the Bear” as its characters were fragments from the said series with their image - parts of the work as copyright objects rights in accordance with paragraph 7 of Art. 1259 of the Civil Code. The absence of such an assessment does not allow to determine the objects of copyright in respect of which the defendant committed a violation, the nature of the violation, and, accordingly, the amount of compensation to be recovered under Art. 1301 of the Civil Code.
Dispute Analysis
To protect its rights, the plaintiff used the rule of law (clause 7 of article 1259 of the Civil Code of the Russian Federation), according to which copyright applies to part of the work, its name, character, if by its nature they can be recognized as an independent result of the author's creative work.
According to the sub. 1 p. 1 Art. 1270 of the Civil Code of the Russian Federation using the work regardless of whether the corresponding actions are taken for profit or without such a goal, it is considered, in particular, to reproduce the work, ie making one or more copies of a work or its part in any material form. Thus, the production of a part of a work is the use of the work itself.
According to paragraph 1 of Art. 1229 of the Civil Code of the Russian Federation, other persons may not use the relevant result of intellectual activity or means of individualization without the consent of the copyright holder. It is illegal and punishable. In Art. 1301 of the Civil Code of the Russian Federation, which establishes liability for violation of exclusive rights to a work, including in the form of compensation in the amount of 10 thousand rubles and more. up to 5 million rubles, determined by the court on the basis of the nature of the violation, part of the work is not mentioned as an independent object of protection.
The courts unanimously recognized the cartoon characters as independent results of creative work. However, on the issue of protection of rights to several characters in the composition of a single work, the opinions of the judges were divided. The courts of first and appeal instances broadly interpreted the law and gave protection to each animal as part of a work, without taking into account that the violation of the rights to each of them is a violation of the right to one work. SIP paid attention to this fact and considered it wrong to exact compensation for each part of a single work.
Assessment of the norms of the law - what is really the logic of the protection of a part of a work
The law does not contain an unambiguous regulation of the issue of protection of rights to separate independent parts of a single work. The courts attempted to provide criteria for establishing fair compensation in this case.
The courts of the first and appeal instances agreed with the claimant’s opinion and used the formula “one character - one violation”. Although, following this logic, in addition to compensation for each character it was necessary to seek compensation for violation of the right to work as a whole. In this case, the formula would be the following: “one character - one violation of the right to a character and a violation of the right to the work itself”.
CIP proposed another formula: “one work - one violation”, regardless of how many characters were illegally used. When applying this formula, the law is not interpreted broadly and the logic of using part of a work as using the work itself does not allow awarding compensation for infringing the rights to several parts of a single work as infringing the rights to separate independent objects of copyright. The logic of the law is that when using part of the work, the offender can also be brought to justice. Otherwise, all the violators would use only a part of the works and would calmly leave about responsibility: “But I didn’t redraw the whole cartoon into a notebook!”.
The Judicial Panel on Economic Disputes of the Armed Forces of the Russian Federation (Determination No. 309-ES14-7875 of June 11, 2015) did not consider the findings of the Court on intellectual property rights in accordance with the law. Consequently, the criteria for determining the boundaries of copyright protection in such disputes have not yet been definitively established.
The court of first instance, when reconsidering, awarded 10 thousand for each character. Here you can see the whole cartoon nursery right in the court decision.
Thus, the violation of animation while winning! We'll see what happens when we review it again in the following instances.
findings
The most interesting is how it can be useful to us?
If you show imagination, then we can multiply violations anywhere!
Have you stolen a website design? We file a lawsuit not for violation of the rights to the entire site, but for each photo and each article, each logo, etc.
The program uses several interfaces, original icons, etc. - we file a lawsuit not for the protection of rights to the program entirely, but for each independent element.
Want to get more money for trademark infringement? Register more trademarks and file a lawsuit not only for infringing the rights to the trademark, but also for infringing the rights to the copyright object.
A good example of protecting rights is the Baby Club logo.
Leave your calculations in the comments. I wonder who will first justify the correct answer.
(c) Kirill Mityagin
Source: https://habr.com/ru/post/297374/
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