The collisions of international intellectual property law and the Civil code of Russia

Law/9.Civil law

PhD, Mirskikh Irina

The federal state budgetary educational Institution of higher professional education

«Perm state national research university», Russia

The collisions of international intellectual property law and the Civil code of Russia[*]

The market of innovation activities are developing in Russia.

Part IV of the Civil Code of Russian Federation dedicated to legal regulation of Intellectual property rights came into force in 2008. It is a first attempt of codification in Intellectual property sphere in Russia. That’s why a lot of new norms appeared. Introduction of the Part IV of the Civil Code of the Russian Federation has completed codification of the civil legislation of Russia. It completes the work on full systematization of the whole civil legislation, regulating the relations in the sphere of intellectual property and a number of related norms in the Civil Code. Introduction of the Part IV of the Civil Code of the Russian Federation allowed to systematize the federal legislation on intellectual property. The basis of this system is recognition of subjective intellectual property rights for the results of intellectual activity and the means of individualization (for intellectual property) as exclusive ones. However, they differ from property rights and other material rights because they are intangible, and they differ from personal non-pecuniary rights of authors and other creators of intellectual results by the fact that they become a subject of civil circulation and allow to involve the objects of intellectual property into such circulation.

The main problem of the Russian Civil Code (part IV) is that many rules (norms of Law) contradict the norms of International Intellectual property Law (i.e. protection of inventions, creations, ideas, know-how, trade secrets, innovations).

Intellectual property rights protect innovations and creations and reward innovative and creative activity. Intellectual property rights are international in character and in that respect they fit in rather well with the economic reality of the global economy [1, p. 12].

Inventors prefer not to take out a patent for inventions because it is a very difficult procedure, it takes a lot of time and is very expensive. That’s why they try to protect their inventions as ideas, know-how, confidential information. An idea is the main element of any object of Intellectual property (creation, invention, innovation, know-how, etc.). But ideas are not protected by Civil Code of Russian Federation.

Russian scientists create breakthrough technologies, which are able not only to provide the needs of the country, but also to create prerequisites for entering he external market of new kinds of competitive products and technologies. This can reduce the dependence on the export of raw energy resources, but scientists have to sell technologies to foreign companies due to the lack of innovational system that can establish conditions for financing the process of technologies implementing.

The main problems of intellectual property protection in Russia are the following: the problem of idea protection, the problem of invention protection, the problem of know-how protection

Ideas are not protected by the Civil Code of the Russian Federation. An idea is the main element of any object of intellectual property (creation, invention, innovation, know-how, etc.). But even the particular expression of an idea is left unprotected. Granting exclusive property rights to the creator of an idea allows him or her to appropriate much of its social value. Consequently, the incentive to create ideas aligns closely with their social value, as required for efficient innovation. The owner of an idea has the right to exclude others from using it. Excluding others from using an idea impedes their dissemination and application [2, p. 128]. The recognition idea as intellectual property will make it possible to use the intellectual property rights, that can provide an income to its owner. This profit will encourage the owner to continue his innovative work [3, p. 17].

According to the Civil Code of Russian Federation “a technical solution in any area, relating to a product (for instance a device, substance, microorganism strain, cell culture of plants or animals) or process (process of affecting a material object using material means) shall be protected as an invention” [4].

The problem is that inventions are patented as utility models or are protected as know-how. Inventors prefer not to take out a patent for inventions because it is a very difficult procedure, it takes a lot of time and is very expensive. That is why they try to protect their inventions as ideas, know-how, confidential information, utility models.

The protection of know-how is far from being perfect. A lot of rules (norms of Law) contradict the norms of International Intellectual property Law.

In international intellectual property trade know-how is regarded as industrial property that is transferred by license transactions.

The most valuable know-how are constructive and technological secrets of competitive production. It is possible to define the following features of know-how:

The owner of know-how must believe that the release of the information would be injurious to him or of advantage to his rivals. The owner of know-how must believe that the information is confidential or secret. The two first beliefs must be reasonable. Finally, the information must be considered taking into account trade practice [5, p. 55].

The first class consisted of information in the form of skill and experience built up by individual employees in relation to the practical implementation of techniques or processes. It indicates the way in which a skilled personnel do their job. A person may make a fairly detailed written description of how to produce a particular result by a series of chemical processes or reactions; but as all the world knows in practice the best result is obtained not by merely following all the directions in the book, but by the way in which the experienced person applies these directions.

Another class of such technical secrets (‘know-how’) is used to refer to disembodied information in the form of technical knowledge of industrial significance which has been built up in one organization and is not in the public domain. In this sense, the term relates to the application of technology in an industrial situation rather than to creativity. Know-how of this kind can constitute a trade secret, for, as an independent entity of information, it is inaccessible, and the law does not require any degree of novelty provided that information is inaccessible.

Russian legislation (the Civil Code, the Law on commercial secrets) makes no difference between trade secrets and know-how and this contradicts the norms of International Intellectual property law.

Know-how plays an exceptional role in the world. Know-how along with inventions provides acceleration of science and technical progress and socio- and economic development of countries.

The described situation in Russia is worsening by researchers and inventors (about 80%), who do not understand the role and value of know-how in the world production, external and internal trade.

References:

1. J. Holyoak and P. Torremans, Intellectual Property Law. 2-nd ed., London, Edinburg: Dublin. Butterworths, 1998.

2. R. Cooter and Th. Ulen, Law and Economics. 3-nd ed.,New York, Longman, 2000.

3. J. Holyoak and P. Torremans, Intellectual Property Law. 2-nd ed., London, Edinburg: Dublin. Butterworths, 1998.

4. Civil Code of Russian Federation, Moscow, 2008, Part IV, art.1350.

5. T. Hard and L. Fazzani, Intellectual Property Law. 2-nd ed. New York: Palgrave, 2000, ch. 7.