How Intellectual Property Rights Work

Creators of creative content, such as photographers, illustrators, designers, authors of online courses, articles, and books, including tutorials, may face infringement of their intellectual property rights. It is important to understand that using materials created by others, such as images or text, without appropriate permission can lead to legal consequences. Unauthorized use of content can not only violate the law but also damage one's reputation, so knowing your copyright rights and responsibilities is essential for every creative professional. Ensuring the protection of your work and respecting the rights of other creators are key aspects of a successful and ethical creative process.

How can you protect your intellectual property rights from pirates and plagiarists? This question is answered in the book "Stole? Punish!" by lawyer Alexey Bashuk and editor Maxim Ilyakhov. "A Book on Intellectual Property Protection," published in November by Alpina Publisher, offers valuable advice on copyright protection and preventing infringement, and explains how to avoid becoming a victim of plagiarism.

The authors explain the basics of intellectual property law in accessible language, including the trademark registration process, the specifics of trade secrets, and franchise agreements. Bashuk and Ilyakhov examine common real-life situations, supporting their explanations with examples from real court cases and citing current laws. This will help readers better understand how to apply this knowledge in practice and protect their intellectual property interests.

With permission from the publisher, we are publishing an excerpt from the "ABCs of Copyright" section. This section is intended to introduce readers to the basic concepts and principles associated with copyright. Understanding copyright is essential for protecting intellectual property, which is relevant for both professional and amateur authors. We strive to provide useful information to help you understand issues related to the creation and use of works, as well as the legal aspects associated with them.

Exclusive Rights: How to Make Money from Creativity

You've written an article and, as the author, own all rights to it. You can use your name as you see fit, and no one has the right to make changes without your consent. However, the question arises: how do I sell my article to a magazine or other websites? How do I get paid for using your material? And what rights will those who purchase your article have?

To successfully sell an article, it is important to determine the terms of the transfer of rights in advance. You can offer full publication rights, which will allow the magazine or website to edit the text as they see fit. Or you can retain copyright by providing only a license to use the article, which will give you control over its future fate.

When selling an article, it is necessary to enter into a contract that clearly sets out the terms of use and payment. This will help avoid misunderstandings and protect your interests as the author. Make sure all terms are clear and acceptable to both parties.

This approach will not only provide you with financial benefit, but also ensure that your work is used under terms that you consider fair.

The answer lies in the concept of exclusivity. If we consider personal rights as the right "to be", then the exclusive right should be understood as the right "to use". This right provides the ability to dispose of the object to which it applies. Exclusivity allows the owner to control the use of their property, which is a key aspect in the field of intellectual property and copyright.

When you have exclusive rights to a work, you become the copyright holder. This gives you the freedom to use your work as you see fit: display, print, perform, sell, and so on. Without your permission, others cannot do these things with your work. The copyright holder has the right to control the use of their content and protect their interests in the event of copyright infringement.

When it comes to selling a song or book rights, what is really meant is the disposal of exclusive rights. Selling rights can be accomplished in a variety of ways, and your income will depend on how wisely you choose the sales method. It is important to understand that a competent approach to selling rights can significantly increase your profits and ensure better conditions for the further use of your creative product.

How to effectively manage exclusive intellectual property rights? Let's consider the analogy of an ordinary apartment. You can sell your apartment permanently or rent it out, allowing the user to use it temporarily. Intellectual property rights can be managed in a similar way. You can transfer your rights completely by selling them to another person or organization, or you can enter into a license agreement that allows others to use your property under certain conditions and for a specified period. Choosing the right strategy for managing exclusive intellectual property rights can significantly increase your profits and ensure the protection of your interests.

Still: TV series "Suits" / Untitled Korsh Company

After By creating a photograph, you automatically become both the author and the copyright holder. You have both the personal rights and the exclusive right to this work. The author's personal rights are not transferable, while the exclusive right can be transferred to third parties, for example, "sold" or "lent for use". This means that you can control how your photograph will be used and decide who can use it and under what conditions.

Alienation means the complete transfer of rights to an object, in this case, a photograph. Initially, you were the copyright holder, but after the transaction is completed, those rights pass to another person or organization. As a result, you have transferred the exclusive right, which means that you are no longer able to use your photograph. The new company that becomes the owner of the rights can dispose of it as it sees fit. You received monetary compensation for this transfer of rights.

Exclusive rights cannot be transferred partially, temporarily, or with restrictions. This is like selling an apartment with the stipulation that the new owner cannot visit it on weekends—absurd. Exclusive rights to a work are sole and can only be transferred in full. Therefore, the phrase "transfer of all exclusive rights to a work" is poorly worded.

After the rights are transferred, you remain the author of the work, but another person becomes the copyright holder. This transaction is of great importance: the agreement must be in writing and contain clear instructions about who is transferring the rights and to which specific work. Properly drafting such agreements will help avoid legal disputes and protect the interests of both parties.

Purchasing work from an author without a contract is a mistake. Without a contract, the rights to the work do not transfer. Nowadays, many directors pay for photographs, believing they have acquired exclusive rights. However, after a few years, the photographer may make claims and demand additional payments. This is a common situation, which highlights the importance of legal documents in copyright transactions. Signing a contract guarantees the protection of both parties' interests and prevents potential conflicts in the future.

In 2017, a photographer in Moscow gave a company employee his photographs with permission to use them at an exhibition. However, several years later, he noticed that the company was actively using these images in its advertising, on social media pages, and at exhibition stands. However, no contract existed, and exclusive rights to the photographs were not transferred. As a result of the court proceedings, the company was found to be in copyright infringer and ordered to pay 340,000 rubles in compensation. This case highlights the importance of formalizing rights to use images and protecting copyright in business.

A license is an agreement that allows you to use a work without transferring full rights to it. If you want to generate income from your work but are unwilling to part with it, it's worth entering into a licensing agreement. A license can be compared to renting an apartment: you retain ownership of the work while granting others the opportunity to temporarily use it under certain conditions. This approach protects your rights and allows you to control the use of your intellectual property.

A licensing agreement should outline key aspects that will protect the rights of the parties and clearly understand the terms of use. Important points include the subject matter of the agreement, which describes what is being licensed, as well as the rights and obligations of the licensor and licensee. It is important to clearly define the license term and renewal conditions, as well as restrictions on the use of the licensed asset. Including provisions regarding remuneration, including the amount of the license fee and the payment procedure, is also important. Don't forget to specify the terms of termination of the agreement, as well as the dispute resolution procedure, to help avoid future conflicts. A properly drafted license agreement ensures legal protection and facilitates effective collaboration.

Subject — what work you are authorizing to be used.
Method of use — how you are authorizing its use.
Territory — in which countries the work can be used.
Price — how much money and how often you will be paid.
Term — how long the license is valid, how to renew.

You can enter into an agreement with the licensee, establishing an obligation not to sell similar licenses to other individuals or companies. Such licenses are called exclusive, and they are granted only to one individual or organization. For example, one company can use your photo only in Russia, while another can use it exclusively in Kazakhstan. This way, no one else will be able to acquire similar rights. However, the use of this photo will be prohibited in Lithuania and Germany, due to the restrictions in the license terms. Exclusive licenses protect the owner's rights and help control the use of content in different regions.

Photo: sitthiphong / Shutterstock

If one company uses your photo in their book, and another uses it in outdoor Advertising, this can lead to legal consequences. If any of them decide to post the photo on their website, it will violate the license terms and create legal risk for them. It is important to understand that compliance with license agreements protects the interests of both copyright owners and companies using the content. Therefore, you should always carefully check the terms of use for images and obtain the necessary permissions before publishing them on websites.

Exclusive licenses can be issued in unlimited quantities. The key is that there is no overlap of rights between purchasers. The possible uses of such licenses are varied and can include various methods and formats.

If the license agreement does not include exclusivity clauses, then such a license is considered simple and non-exclusive. This means that you can enter into multiple agreements with different parties under similar terms. An example of this approach is selling images on photo stocks: the same image can be purchased by you and hundreds of other users, who can then use it as they see fit, all without violating the license terms.

Some companies face serious licensing issues. For example, an organization contracts a freelancer to create a website, pays the agreed-upon fee, and receives the finished product. Everything seems fine, but soon it turns out that competitors in another region have launched an identical website. This underscores the importance of properly formalizing copyright and development licenses. To avoid such situations, companies should carefully review the terms of cooperation and ensure the protection of their intellectual assets.

The freelancer is not an infringer, as they have the right to resell the website. If the agreement with the freelancer does not specifically provide for the transfer of exclusive rights or the granting of an exclusive license, this is not considered an assignment of rights, but a standard license. This is precisely why the freelancer continued selling the website.

Some may consider this action inappropriate, but lawyers will explain it as an "expression of the copyright holder's will." The court will likely uphold this position.

If you are the author, licensing your work is usually more profitable than completely assigning rights. For example, imagine you took a photo of a person with a laptop under a palm tree. Today, one advertising agency licenses your work, tomorrow, another, and the day after, a third. Some use your image to promote programming courses, others to attract clients for their business, and still others for other purposes. These revenues do not interfere with each other; on the contrary, they create additional opportunities for you. Some companies close, others appear, and you continue to profit from licensing your photo. Each new deal brings you additional income for the same work, making licensing a promising option for creators.

If you granted your first client exclusive rights to use your photograph rather than a license, this could have serious consequences for your business. The first buyer might use your photograph for a year and then go bankrupt, leaving you without the ability to license your own work. In this case, you would still be the author of the photograph, but you would be legally unable to use or sell it. The problem is that it won't always be possible to make a claim, since it is unknown to whom exactly your client might have transferred exclusive rights before bankruptcy. This emphasizes the importance of properly formalizing intellectual property rights and the need to choose an appropriate licensing model.

When a company offers to enter into an assignment agreement, it is important to consider whether it is really necessary. Perhaps a license agreement would be sufficient for their purposes. In this case, you have the opportunity to negotiate, since exclusive rights have a higher value. It's important to remember that the transfer of exclusive rights is only possible once, so it's worth considering this decision carefully.

It's important to remember that, by default, the purchaser of your work has no right to make changes, even if they have paid for a license or received exclusive rights. Don't forget about the right of integrity. If you want to give the buyer the ability to modify and rework your work, this must be specified in the contract. This also creates additional negotiating opportunities.

The right to remuneration in the area of copyright is important. If an employee creates a work at the request of the employer, they are considered the author, but the exclusive right to this work belongs to the company. This means that the company receives all financial benefits from the use of the work. It is important to understand whether the employee has the right to receive remuneration for their work. There are various approaches to this situation, and in most cases, the employee can expect additional compensation if provided for in the employment contract or internal company regulations. Thus, the issue of remuneration for authors of works created within the scope of employment remains relevant and requires careful consideration by both employers and employees.

Answer: Yes, such a right exists. We will examine this topic in more detail later, but for now it is worth noting that the right to this does exist.

Right of resale and right of access. An artist who sold their painting to a gallery for a small sum may wonder about their rights when the painting is subsequently sold to a wealthy collector for a significant sum. In such cases, the artist is entitled to receive a percentage of the subsequent sale of their work. This right is called the right of resale, and it is regulated by law. The law establishes a specific percentage that the author must receive from transactions related to their works of art.

The artist can ask the new owner for the opportunity to see their work again. This right is called the right of access. Within the framework of this right, the artist also has the opportunity to make a copy of their painting. These unique rights remain with the artists and allow them to maintain a connection with their works even after the sale.

Photo: Gorodenkoff / Shutterstock

Myth: „copyright does not apply if there is The work does not have the © symbol.

Many people believe that the © symbol automatically grants legal protection to a work. It's believed that if you take a photo and add the © symbol, your rights are protected. However, authors sometimes perceive this symbol as a legally significant attribute, which is a misconception. In reality, the © symbol is simply a symbol indicating copyright, but certain legal requirements must be met to protect it.

There is a common misconception among pirates that the absence of the © symbol next to a work allows anyone to use it without restrictions. However, this is a misconception. Copyright is effective automatically from the moment a work is created, regardless of the presence of the © symbol. Therefore, even without this symbol, using a work without the permission of the copyright holder is illegal. It is important to remember the need to respect copyright and comply with it even in the absence of explicit notices.

Copyright is protected regardless of the presence of the © symbol on a work. This symbol does not affect the scope of legal protection or change its effect. It is important to understand that copyright arises automatically from the moment a work is created, and its protection is based on intellectual property laws. Copyright holders have the opportunity to defend their rights both in court and through other mechanisms, thereby ensuring the protection of their interests.

The copyright symbol is a warning mark that serves as a symbol of intellectual property protection. The main purpose of this mark is to notify potential infringers of the presence of a copyright holder who is ready to defend their rights. The presence of such a mark raises awareness of the importance of respecting copyright and warns of the possible legal consequences of infringement.

The comparison between delivery services and authors of works is apt: boxes are marked "Do not tilt," while creations are marked © — "Do not steal." However, no one can predict how the situation will develop: boxes can be damaged, and works can be copied despite the warnings. The presence of such markings can reduce the number of infringements, since some people think twice after seeing the warning. However, the absence of such markings does not absolve violators of responsibility for their actions.

Use of the © mark is the author's right, not their obligation. If the copyright holder wishes to assert their rights and is prepared to protect them, they must include their name, the © mark, and the year of first publication on the copy of the work. On your website, the copyright symbol can be represented as follows: © [Your name or company name], [Year of first publication]. This lets visitors know that your content is copyrighted and demonstrates your commitment to protecting your creative rights. Proper use of the © symbol helps prevent unauthorized use of your content and promotes online copyright compliance.

Ivan Ivanov, 2022.

How Copyright Arises and How to Prove Your Authorship

We've encountered a major obstacle in the area of copyright.

Copyrights do not require registration or government approval, which distinguishes them from patents and trademarks. They arise automatically the moment a work is created: by writing an article or code, you become its author. This simplifies the process of protecting intellectual property, allowing authors to focus on their creativity, knowing that their rights are protected from the moment the work is created.

On the one hand, if the author is offended and decides to go to court, they will need to prove their authorship. Copyrights arise automatically and do not require registration. However, in the event of a dispute, it will be necessary to convince the court of this right. This can be done by presenting evidence, such as the presence of the author's name on the original or a copy of the work.

If you are listed as the author on the painting, the issue of authorship is resolved simply: the court will recognize you as the author. This rule was established back in the 19th century and is still relevant. However, in the modern world, proving authorship is becoming more difficult for programmers, copywriters, and designers. For example, if you developed a program and posted it to an app store, and thousands of users downloaded your app, how can you prove your authorship? It's important to keep in mind that for digital works, you must have relevant evidence, such as source code, copyright registration documents, or other materials that can confirm your role as the creator.

Photo: Alexander Davidyuk / Shutterstock

Ideal evidence for a trial should prove three key circumstances: the existence of a specific work, your exclusive right to it, and the fact that the defendant has infringed this right. The evidence must be so convincing as to leave no doubt in the court's mind.

Publishing an article on a website is not reliable proof of authorship. It is possible that the site administrator could have changed the publication date, setting it back ten years, thereby posing as the original author. Furthermore, the file creation date is also not reliable evidence, as it can easily be spoofed. To confirm authorship, it is important to consider additional factors, such as the presence of original content, unique identifiers, or copyright registration certificates.

In 2017, an incident occurred in Moscow when a news portal illegally copied a photograph of the city. The copyright society representing the photographer filed a lawsuit seeking compensation for copyright infringement. A copy of a disk with the original image was submitted as evidence. This case highlights the importance of upholding copyright in the digital age and the need to protect creativity.

The arbitration court dismissed the claim, finding that the disc containing the original files was not sufficient evidence of authorship. The court noted that it was impossible to establish that the photographs on the disc were taken by a specific photographer. The author's name was not indicated either on the photographs themselves or in the metadata presented as evidence. This highlights the importance of proper copyright registration and the need to document authorship to protect one's interests in court.

In the 19th century, the so-called "postal method" was used to confirm authorship. After completing a work, the author would seal it in an envelope and mail it to themselves. The envelope would be returned postmarked and dated, serving as proof of the date of the work. The author kept this letter and, in the event of a dispute, could present it to the court. The judge would open the envelope and find a signed and dated manuscript inside, which would allow the dispute to be resolved in the author's favor. While this story sounds impressive, there are no data on actual court cases in Russia using this method.

We use three main methods to confirm authorship: notarization, submitting the work to a depository, and registration with Rospatent. These methods provide legal protection and confirm the author's rights to their work. Notarization is a reliable way to document authorship, while a depository allows you to store the work in a safe place. Registration with Rospatent provides additional guarantees and intellectual property protection. The choice of method depends on your needs and goals.

A notary can certify your signature on a printed work. As a result, you will receive a document with the date and a notary seal, confirming its legal force and authenticity.

Authors face two main problems: queues and high fees. To confirm copyright, you must personally visit a notary office, and the cost of notary services increases as the volume of the work increases. That's why this method of copyright registration is rarely used.

A depository is an archive to which the author submits a copy of their work and receives a certificate or registration document. This document records the title of the work, the author's name, and the registration date. In Russia, the most well-known depositories are the Russian Authors' Society and Kopirus. These non-profit organizations have a good reputation and are trusted by the courts, making them reliable partners for copyright protection. Registering a work with a depository is an important step in confirming authorship and protecting intellectual property.

Unprepared citizens often find it difficult to navigate the documents required to work with official depositories. This leads to the bureaucratic procedures of large depositories becoming complex and confusing. As a result, private depositories have begun to appear on the market, seeking to simplify the deposition process. Lawyers and programmers are actively working to make this procedure more accessible and convenient, which opens up new opportunities for earning money in this area.

There are many proposals for preserving works: some recommend using in-house archives, others are creating platforms based on blockchain technology. However, at the moment, there is no certainty as to whether a court will recognize a private depository as a legitimate method of protecting copyright. Judicial practice in such cases has not yet been established. Moreover, it is worth considering that the exclusive right to a work lasts for 70 years, and the viability of new startups offering copyright registration services is questionable. Will such a project be able to survive at least five years? Much uncertainty remains in this matter.

The depository system is not an ideal solution. If I send three volumes of "The Lord of the Rings" to the Russian Authors' Society and list myself as the author, they will issue me a certificate. However, no depository conducts an examination of a work's novelty, originality, or authorship. In fact, notaries and depositories only confirm the existence of a work on a specific date. This is important to understand, as copyright protection requires much more than simply registering a work. It's important to remember that a simple certificate does not guarantee protection against plagiarism or ownership disputes.

It's important to remember that depositing a work does not automatically grant you copyright. Many people unknowingly fall victim to scams, losing money, and then facing defeat in court. The scam involves scammers offering authors the opportunity to "register copyright" in their private registries. They lure clients with low fees and a falsely simple process: supposedly, all they need to do is pay a small fee and complete a few simple steps to protect their rights. In reality, this approach provides no real protection and can lead to legal consequences.

Copyrights do not require registration, including in private registries. Consider the following example:

In 2019, a businessman in Nizhny Novgorod selling wallpaper with unique designer prints on his website encountered a problem. He discovered that competitors were using similar prints. In response, he made a test purchase and deposited the prints in a private depository to protect his rights. Following this, the entrepreneur filed a lawsuit seeking 800,000 rubles in compensation from his competitors. This case highlights the importance of protecting intellectual property in business and the need to monitor the market to prevent infringement.

The court dismissed the claim. It turned out that the defendant had ordered prints from the artist a year before filing the lawsuit, signing a formal contract, paying for the services, and receiving both the prints themselves and the rights to use them. The plaintiff did not challenge the authenticity of the contracts, and the court noted that the certificates from the private depository were of little significance, especially since they were obtained after the plaintiff purchased the wallpaper. The appellate and cassation courts upheld the court's decision.

The moral: relying solely on depository is insufficient. Various materials may be useful in litigation to prove authorship: drafts, source files, witness statements, publications on reputable resources, emails, or file uploads to cloud storage. Courts consider all this evidence, and the more evidence there is, the higher the likelihood of a successful case.

Rospatent offers programmers a unique opportunity to register their programs in a separate Registry of Computer Programs. This registry allows for the registration of program source code and screenshots. Essentially, this registry acts as a depository, but there is an important clarification: information presented in the registry is considered reliable until proven otherwise. Registration in the Computer Program Registry provides additional copyright protection and can be an important step for developers seeking to preserve the uniqueness of their solutions.

Photo: REDPIXEL.PL / Shutterstock

If you download the code Windows operating system in the standard depository, in the event of a dispute, you will have to prove your copyright to this code. However, if you register the code with Rospatent, the check will not be carried out, but in this case, it is Microsoft that will be obliged to prove that the copyright to this code belongs to it.

How long and where are copyrights valid

Nikolay Vasilyevich Gogol died almost two centuries ago, but his copyright continues to be protected. You cannot change the text of a work such as Dead Souls and sell it under your own name. The right of authorship, as well as the protection of the name and the inviolability of the creation, remain valid indefinitely. This underscores the importance of respecting intellectual property and copyright, which contributes to the preservation of cultural heritage.

Exclusive rights to works in Russia last for the author's lifetime plus 70 years after their death. This means that property rights can be passed on by inheritance, allowing heirs to continue to profit from their relative's creative legacy. They can sell licenses and transfer rights, ensuring the possibility of generating income from the work of a talented author even after their death.

After 70 years from the date of creation, a work enters the public domain, allowing anyone to use it. The author's personal rights remain protected, but property rights are lost. This is why designers often turn to old paintings, diagrams, and drawings—if an engraving was created several centuries ago, heirs have no right to use it. It is worth noting that there are nuances, such as the rights of publishers, which are recognized as related to copyright. However, in this context, it is important to remember the basic idea: exclusive rights to a work expire over time, which opens up new opportunities for creativity and the use of cultural heritage.

When using ancient works, it is important to ensure that they are truly in the public domain. You cannot simply copy images from search engines, since an image resembling a medieval engraving may be a modern work, and the author of such works may be alive and object to the use of their work. Before using an image, it is recommended to check its copyright status and ensure its legality.

If you are looking for an ancient engraving, it is recommended to visit museum websites and carefully study the rights information for specific images. It is important to consider not the date of creation of the work, but the years of the author's life, since the duration of copyright is determined by them.

At the end of the 19th century, the Berne Convention, aimed at the protection of literary and artistic works, was signed in Switzerland. This convention ensured that authors from one country can enjoy the same rights to their works in other countries as local authors. The Berne Convention was a significant step in international copyright protection, promoting cooperation between states and ensuring the protection of intellectual property on a global scale.

The Berne Convention has been adopted by 179 countries and remains in force in virtually every corner of the world, with the exception of a few countries such as Somalia, Kenya, Iraq, and Laos. This convention plays a key role in copyright protection and promotes international cooperation on intellectual property.

Today, if you create a work, its rights are automatically protected in almost every country in the world. Although each country has its own rules, the basic principles remain the same: the author is the person who created the work. The law protects copyright without the need for registration, allowing authors to confidently dispose of their intellectual property.

Fair quotation does not infringe copyright. In order to correctly quote a work, you do not need to obtain the author's consent, and there is no need to pay them remuneration. However, for a citation to be considered legitimate, four conditions must be met.

the purpose of the citation is informational, scientific, educational, or cultural;
the length of the citation is justified by its purpose;
the author of the work is indicated in the citation;
the work that is the source of the citation is indicated in the citation.

Quoting various works, including text materials, photographs, images, and other types of content, is possible. However, to comply with copyright, it is necessary to strictly adhere to all the conditions established by law. Failure to comply with even one of these conditions may result in a violation of the author's rights. It is important to remember that proper citation includes indicating the source, maintaining the length of the citation, and using materials within the framework of fair use.

How Intellectual Property Rights Work

Contents:

Exclusive Rights: How to Make Money from Creativity

Myth: „copyright does not apply if there is The work does not have the © symbol.

How Copyright Arises and How to Prove Your Authorship

How long and where are copyrights valid