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Intellectual property: from idea to innovation

Intellectual property rights are experiencing a period of rapid development: there are many projects for talented innovators in the world to develop their ideas, and intellectual rights are increasingly the subject of litigation. In the age of intellectual property, it is more important than ever to understand what exactly protects the law and how.

Objects of protection

If we talk about Russian reality, the basic rules in the field of intellectual property law are formulated in part four of the Civil Code of the Russian Federation (hereinafter – the Civil Code). In particular, Article 1125 of the Civil Code establishes that the results of intellectual activity and the means of individualization of legal persons, goods, works, services and enterprises that are granted legal protection (intellectual property) equated with them are:

1) works of science, literature and art;

2) programs for ECM (computer programs);

3) databases;

4) performance;

5) phonograms;

6) airing or cable broadcasting of radio or television programs (broadcasting of broadcasting or cable broadcasting organizations);

7) invention;

8) useful models;

9) industrial designs;

10) selection achievements;

11) topology of integrated microcircuits;

12) the secrets of production (know-how);

13) company names;

14) trademarks and service marks;

15) appellations of origin of goods;

16) commercial designations.

Intellectual property in Russia is comprehensively protected by legislation – in particular, civil law (articles 1301, 1311, 1406.1, 1472, 1515, 1537 of the Civil Code), administrative (Articles 7.12 and 14.10 of the Code of Administrative Offenses – Administrative Code) and criminal (Articles 146, 147 and 180 of the Criminal Code of the Russian Federation – Criminal Code).

However, it is worthwhile to examine in greater detail the question of what exactly relates to intellectual property, and, consequently, is protected by legislation.

We need to immediately mention that contrary to the widespread misconception, ideas (as well as methods, processes, systems, methods, concepts, principles, discoveries) are not protected by law as a general rule, as they are recognized as intellectual property. In recent years, a lot of various legal disputes were conducted, when the subject of the proceedings was precisely the «plagiarism of the idea». Let us dwell not on more than a few illustrative examples.

Use of ideas and concepts is not a violation

► In 2015, the Court on Intellectual Rights held a hearing on the claim of the company Gestmusik Endemol SA / and closed joint-stock company «VayT Media» to the open joint-stock company « First Channel «. The plaintiffs asked «to acknowledge the fact that the defendant created the» Toch-v-toch «program as a violation of the company’s exclusive copyrights to the Program Format; Recognize the fact that the «First Channel» created the «Toch-v-toch» program as a violation of the company’s exclusive copyright rights to the audiovisual work «Odin-v-odin»; Forbid the «First Channel» to carry out any use of the « Toch-v-toch» program, including the provision to third parties of the right (license) for the production of TV programs based on the « Toch-v-toch» format, using a combination of original elements of the Program and «Odin-v-odin»; Forbid the «First Channel» to produce any program that uses a combination of original elements of the Program Format without the consent of the company; Prohibit the «First Channel» from carrying out the production of any program using a set of original elements of the «Odin-v-odin» program without the consent of the community «.

The Intellectual Property Court considered the case as a court of cassation – before that, by the decision of the Arbitration Court of Moscow of 14.10.2014, left unchanged by the decision of the Ninth Arbitration Court of Appeal of 19.01.2015, the claim was rejected in full.

The matter is interesting in that it shows the ratio of various objects of intellectual property and their interaction in practice. Thus, the courts established that the plaintiff «is the owner of exclusive copyrights to the Format of the program, recorded in particular in the production bible of the program format, which is a kind of artwork protected in accordance with Article 5 of the Berne Convention and clause 1 of Article 1259 of the Civil Code of the Russian Federation» . However, the courts noted that the plaintiffs did not provide evidence of the use of the literary work of the Production Bible of the format of the program, or part of it, in the audiovisual work « Toch-v-toch «, as well as the audiovisual work «Odin-v-odin» in the form of fragments of the work, its sound or visual Series). The defendant did not deny the use of the idea (or in another way, the concept) in creating his own audiovisual work, but the courts indicated that this was not a violation of copyright (Decree of the Court on Intellectual Rights of May 8, 2015 No.С01-320 / 2015 in case No.А40-84902 / 2014).

This indicates that the courts generally support and use in practice the opinion of the Plenum of the Supreme Court of the Russian Federation, expressed in paragraph 2 of Resolution No. 14 of April 26, 2007, Moscow. «On the practice of courts considering criminal cases of violation of copyright, related, Inventions and patent rights, as well as on the illegal use of a trademark «:» By establishing the fact of attribution of authorship or illegal use of objects of copyright and related rights, courts should bear in mind that ideas, methods, processes, systems, method S, concepts, principles, and discoveries, copyright does not apply, and therefore, the means of criminal-legal protection provided for in Article 146 of the Criminal Code of the Russian Federation do not apply to them. «

However, despite this, the authors of various ideas (in the everyday, rather than the legal sense of this definition) are increasingly initiating lawsuits against those who, it seems to them, violated their copyrights.

► In February 2016, Russian writer Lana Kaplan was going to sue the social network Facebook because of the introduction of the latest graduation, the separation of the likes on its website. Kaplan believed that the management of the social network used the idea, which she described in her book of 2013 under the title «Web-LoX». Despite the fact that, according to Kaplan herself, her lawyer considered it fair to demand at least $100,000 for such a violation, the legal community did not support this position – experts in the field of copyright noted that only the concept of part of the literary work was copied, and this is not Is a violation of the law. The social network of Facebook has added six emotions to the usual action: love, laughter, joy, surprise, sadness and anger, while Kaplan described in her book: «like sympathetic,» «like from idleness,» «like revenge,» «admiring the likes», «like an average sneak.» According to information from open sources, in the end the plaintiff refused the requirements to Facebook.

► There are a lot of similar disputes in 2017. Thus, the Leninsky district court is considering case No.2-122 / 2017: the court has already postponed the preliminary hearing several times in connection with the requisition of evidence, and then appointed an expert examination. The essence of the dispute is simple: one of the participants of the contest of projects on the improvement of the Bolshaya Morskaya Street in St. Petersburg, Dmitry Lagutin, demands to recognize plagiarism in the work of another participant in the competition – architect Anton Nikolaenkov. The plaintiff refers to this examination, which confirmed that the defendant submitted to the competition a project in which the idea of Lagutin was used. The outcome of the process is still difficult to predict, but from the information provided it is clear that the plaintiff is trying to protect the idea as an object of intellectual property.

► In March 2017, Hollywood screenwriter Gary Goldman said that he filed a lawsuit against Disney for using his ideas in the popular animated film «Zootopia». Goldman claims that when creating an audiovisual work the company used the name, as well as part of the characters and scenario moves that he had offered to Disney producers earlier. Despite the fact that the matter is dealt with in the United States of America, it is possible to predict its outcome with a high degree of probability. Russia and the United States have no fundamental differences in their approach to protecting ideas and concepts – most likely, the plaintiff will be denied the satisfaction of his demands.

Exception

An exception to the general rule is the secret of production (know-how), which, in accordance with the provisions of Article 1465 of the Civil Code, is «information of any nature (production, technical, economic, organizational and other) on the results of intellectual activity in the scientific and technical sphere and on the methods of carrying out professional activities, having real or potential commercial value due to their unknown to third parties, if such information from third parties does not have free access to lawful and the holder of such information takes reasonable measures to maintain their confidentiality, including by introducing a regime of commercial secrets. « For such a voluminous definition, of course, there are hidden both the possibilities for protecting innovative ideas and the prerequisites for legal conflicts.

Thus, we can note that in the 21st century, the right to intellectual property is experiencing a period of growth, but in such conditions it becomes even more important to increase the level of legal literacy and legal culture of authors (both real and potential) of works of a different nature. The protection of ideas, concepts and methods in its pure form is impossible, and this is the key point that must be understood in order to move further along the innovative path of development.