PhD by specialty, juridical science

Astana (Republic of Kazakhstan)

Kanatov Tanat Kanatovich

Studies about subjective author's right in the theory of right of the Republic of Kazakhstan, Russian Federation and Germany: heritage and modernity

The first ideas about author’s right came on at the time when spiritual creative work itself was formed into independent activity. For example, taking another person’s creation, and also its wrench was criticized even at the time of ancientry. In ancient Greece there was a rule, according to which tragedy manuscripts were to store in official archive, in order it would be possible to control sacrosanctity of the text during staging[1].

In 1440 I. Guttenberg invented book printing, and printing industry came into existence. Although it should be noticed that method of book printing was invented even earlier in China and Korea and was unfamiliar to Europeans. During several decades there were published more than 30 thousands titles of books. Mass reprinting of earlier published books was a common thing. Those, who reprinted books, were called bookish pirates, capers, filibuster, corsair, Vikings, etc. The problems for publisher were that reprinters could fix low prices, thus leading to reduction of profit and income of the main publisher. In order to protect their rights, publishers began to appeal to the State. As a result in countries, where printing industry reached the high level, the legal protection of publishers’ interests came into existence.

The first author’s rights were given to Petr Ravenskiy by Venetian Republic on 3th of January 1491 concerning the work on canon law named «Phonix»: «it is ordered, that no one could print or sell printed exemplar of the mentioned essay … under the fear of confiscation of those exemplars and paying of twenty-five ливров per each one. And those, who sell in the mentioned lovely tenancies the same books, printed on other places, excluding that printer, who is given allowance by the mentioned doctor».[2] [the first privilege was given in XVI century to English company «The Charter af the stationers Company», managing book publishing up to the present day. The law concerning author’s right was fist passed in England in 1710, which had the title «Status of Queen Anna», it mainly protected the authors of the books, drawings, and geographical maps. Registration of rights was carried out by the judge, after this procedure it was carried out by the author, and after 14 years he had the sole rights on his own work. In the beginning of XIX century the authors were allowed to protect all issued works, and later this right was given to composers, translators, script writers, photographers, film directors. Prussia, Sardinia, France, Austria, was the first to recognize the author’s rights of the authors. In 1878 international literature association was established, which in 6 years was renamed into international literature and art association. This organization developed the first the world history international convention concerning author’s right (Bern convention concerning literature and art works in 1886). From this moment the new era of author’s right development began, which continues until the present day.

Author’s right in its basis is a legal expression of recognition by the State of the importance of culture saving for preserving and development of the society. Maintenance and protection of the results of intellectual activity are directly connected the protection of the human’s freedom, rights. Thus, according to Korosteleva S.V. regardless peculiarities of national legislation in the sphere of author’s right, systems of author’s right are recognized as having two-target assignment, that’s a kind of «two-way reality»: on one hand assistance of the right to people, engaged in the sphere of creation of literature and art and on the other fulfillment of the public needs in the way of maximal availability of works, protected by author’s right. [3] whereby it should be kept the fragile balance between author’s interests, (his work should not become the source of income for third persons or be the object of plagiarism), and also excessive limit of access to the author’s works, including limits of economical character, it restrains the development of society, suppresses economical activity of the country, which is not always in the interests of the country and the author himself.[4]

Author’s right as a system of legal norms regulates relations, connected with creation and usage of works of science, literature and art. Word-group «author’s right» is often used for indication of subjective powers of authors and other persons (author’s right in the subjective meaning).[5]

In the studies of theory of right under subjective author’s rights are understood a whole right (competence) , given to the author, necessary for protection of his interests, which occur in connection with work creation and its usage by the society.[6]

The question on understanding and studies of subjective law as a whole is discussed in juridical law during many years. For instance, Rafiyeva L.K. offers the following classification of subjective rights, which are offered by legist-scholars:

1) Authors, considering the subjective law as a pretension;

2) As a mean of providing of definite behavior of definite persons;

3) Authors, who see in the subjective law the degree of possible or allowed behavior of authorized person;

4) Authors, who include in it the permissibility of their own actions of authorized person, and also the possibility to demand the definite behavior from responsible persons.[7]

An interesting point of view concerning the subjective law belongs to Motovilovker E.Y, according to his opinion, the subjective law does not represent the measure of possible behavior, it represents determined by the law the possibility of subjective interest fulfillment. Not each interest connected with juridical subjective right. But each subjective law in the juridical meaning is connected with legal interest. Otherwise possibility (allowance), which subjective law opens, gets empty, senseless.[8]

According to Bratus S.N. the subjective law is «the measure of possible behavior, provided by the law, and thus, by corresponding behavior of responsible persons».[9] «Measure of possible behavior» determines juridical form of subjective right, whereas «usage of social benefit» makes its positive content.[10]

According to Halfina R.O. the subjective law forms two kinds of possibilities: «to determine own behavior and to demand the proper behavior from responsible persons. Herewith the unity of these two sides is emphasized, but the point of view of priority of one of those is not opposed».[11]

The bother authors consider that the subjective law is some legal measure of possible behavior of authorized person.[12]

Meyer D.N. is one of the significant civilest in the period until bourgeois reforms of XIX century, pointed out the right is the measure of freedom of the person, who lives in society, measure, in the limits of which the person can make known activities.[13]

Gambarov Y. S. understood, that the right in its subjective meaning is everything that is given to us, or also provided by the activity of one or another objective right.[14]

Shershenevich G.F. understood, that under the name of right in the subjective law is understood the conditioned by objective right the possibility of interest carrying out.[15]

Ioffe O.S. confirmed that the State has meaning of giving the rights to different subjects, because it provides such behavior of responsible persons, which is stated by the State as an obligation under these circumstances. For authorized person giving the rights is important because it provides such behavior of other persons, which are necessary for authorized one under these conditions.[16] Also Ioffe O.S. gives understanding of subjective obligation, he considers, that the subjective obligation is legal mean of providing of such behavior, which is needed by authorized person and which the state recognize as obligatory one.

In two-way civil-legal relations’ carrying out of obligation by one of the subject is directly connected with carrying out of the rights of responsible persons, leading him to fulfillment of his own interests.[17]

According to Ihsanov E.U. subjective author’s right is judicially provided possibility of the person, who created the work by his own creative labour, is recognized as an author of this work, to choose the method of detecting of his own authorship, to protect creative individuality in his work, and also to use the work with the mentioned in the law ways.[18] French scientist Leon Dugi denied subjective rights as thereof. But afterwards it showed itself as mistaken. Denial of subjective laws leads to denial of private right taken as a whole. Subjective right unlike objective one occurs only at a definite person and only under having of definite factors, particular in the case of work creation. This possibility, fixed by objective right. Subjective author’s rights have exceptional character. Under exceptional character of subjective author’s rights is understood that their owners (author and his cessionaries) can solve the question, connected with the usage of work.

Also it should be noticed, that in scientific literature of Germany subjective author’s right has been paid a big attention. Its essence is in that the author’s right provided rational benefit to the author from one side, and from another upon considerations of practicability and justice of the freedom of third persons to commit the actions, which are allowed for the author.[19] In Germany such studies about author’s right were best developed as: «Theory of privileges», «Theory of person’s right and studies of intellectual property». These studies were fundament of developing of subjective author’s rights taken as a whole in the whole world and operate until the present day.

In the legislation of the Republic of Kazakhstan author’s right is clearly divided on private property and private non property rights, as a whole it gives subjective author’s right. Author’s competence in its content can be shared on two considerable categories: property and non property private rights.[20] Depending on relation of participants of author’s legal relations – on absolute and comparative, depending on peculiarities of carrying out – on item and executor ones.[21]

Private non property rights includes creative interests of the author, connected with public estimation of the work, and do not have property content. Property rights on the contrary have economical value and are due to money estimation. They can be given to third persons on the basis of author’s contracts. These rights in the juridical literature were given names as exceptional rights. Although the content of this idea has been causing debates in scientific literature.[22]

We think that subjective author’s right has the character of exclusiveness in profound explaining in that meaning that it includes both private property rights and private non property rights. This conclusion was formed from the idea that if the author gives his property rights he continues to be the author, keeping private non property rights. But there are opponents of this theory, particular Popova I.V., who thinks that private non property rights are not exclusive because they cannot be given from the author to another holder of rights due to their inalienability from the author.[23]

On the basis of explanation of the law of RK «Concerning author’s right and allied rights» property rights are recognized as exclusive in view of this law, but not of other considerations.

The leading role in the content of copyright was given and is still given to property rights in Western Europe and USA, whereas larger attention is paid to the personal non-property rights in Kazakhstan Republic. This is related to the Soviet ideology, which surrounded us for the elongation of 70 years and left deep imprint on our state and even on all states of the former union republics.

In the countries of the Roman-German legal system of right the division of copyrights into the personal (moral) and the property rights is traditional and found reflection in the special standards of law.

The theory of the united essence of copyright “monistic theory” obtained detailed development in the doctrine of these countries. This theory proceeds from the fact that the connection between the protection of personal and property interests is closer than is considered according to the dualistic concept of copyright. Here the discussion deals not with two component parts, which are expedient to be combined under one name as a result of the general starting point - the personality of the author, but about the common right with the dual function. Austrian law about the copyright was accepted in 1936 and was named “The Ministerial official Carl Lisbauer’s monistic theory ”, it was based on the works of 1900, Rabel’s E, Alfred X. Mitays’ and subsequently moved into the German law of 1965 about the copyright. This theory was descriptively described by Oygen Ulmer. He compares both groups of interests, which are protected by the copyright, with the roots of the tree, which united stem is copyright. The authorities, which are given by the copyright, are large and small branches, drawing their forces, first of both roots simultaneously, then of one root. In the correspondence with this image he emphasizes that the rights of use also have personal- legal element and, on the contrary, property- legal requirements can appear during the disturbance of personal competences. The unity of copyright is manifested not only at the moment of its appearance and curtailment, but also with the inheritance, since personal rights appear and disappear simultaneously with the rights to the use of work and they are inherited with them. Copyright - is the mixture of personal rights and property rights. One will not be able to exist without another but together in the union they are - symbiosis which generates the new juridicial relationships, named subjective copyrights. At present time Monistic theory is used not only in the copyright, but also to explain legal nature of the commercialization of personal rights. For example, the use of a name, image, voice of famous people brings enormous profits. For example “the campaign identities” of many well-known companies are celebrities, the stars of the show of business. After the showing of Hollywood film, based on Ian Fleming’s story “Agent 007. The whole world is not enough” “Omega” company’s sales of hours rose for 900%. Secret is simple - the main hero of picture Pierce Brosnan had them. Personal rights play important role in the property juridicial relationships. The role of personal rights in their commercialization is shown on this example. For the first time the study about the copyright as personal right was developed by German philosopher I. Kant in the work of 1785 named: “The illegality of the republication of the books”.

Emmanuel Kant makes the distinction between the book as mechanical work, relating it to the estate right and its content, which he perceives as the author’s appeal to nation and which, in his opinion, is a part of extended personal right. The republication of the book without the permission of the author disrupts his personal right, and also causes damage to publisher, who appears in the role “controlling” author. In 1844 this thought was developed by Johann Caspar Bluntshli, after defining “the right of the author” first of all as personal right,25 and only in the second turn as property right. Then there were Georg Bezeler (1855), Max Lange (1858), Felix Dan (1871), Carl Garyays(1877) and Otto von Gierke. He considered that only personal component of copyright is basic. Contemporary German doctrine (Fraytag, Getting, Zeman) adhere to the same opinion and moreover they assert that the personal- legal protection of individual is possible only in the context of the interlacing of nonmaterial and property interests.26

The issue about the relationship of the personal non-property and property elements in the subjective copyrights is also questionable in this doctrine .The need of the protection of the personal non-property interests of the author within the framework of civil liberty was either generally denied or the leading role of property copyright was acknowledged in the pre-revolutionary doctrine. In the opinion of Miroshnikova M.A., most logical resolution of this question is the guarantee of every possible and equal protection both of personal non-property and property interests of the author and their reasonable balance with the interests of the third persons.27 Personal non-property rights of the author (moral rights). At the end of the 19th century, in the spirit of the theory of natural right copyrights were proposed to understand as the personal rights (Bluntschli, Bezeler, Garum, Gareys).28 This theory assumed to the beginning of the development of the personal non-property rights of the author.

25Rehbinder, M. Urheberrecht: ein Studienbush. - Muenchen: Beck, 1996. S. 30.

26 Miroshnikova M.A Singulyarnoe pravopreemstvo v avtorskih pravah.Sankt-Peterburg.Izd-vo Asslanova R Uridicheskii centr Press.2005.C6427 Tabashnikov I.G.Muzykalnaya,literaturnaya I hudozhestvennaya sobstvennost.M.1878.C.120-13

28Sm.:Mezhdunarodnye konvencii ob avtorskom prave.Kommentarii.Pod red.Gavrilova E.P-M.:progress 1982.C.25-179

The author’s non property rights are protected by the Bern convention about the protection of literary and artistic works dated September 9, 1886 in revision of 1971 (st.6 of bis, 15). 29

Author’s personal non- property rights were acknowledged by Bern’s convention only in 1928. For the first time it was established on the international level that besides property rights the author has the personal non property rights.

The personal non-property rights are united by the fact that they serve to acknowledge that person has moral value. The important sign of the personal non-property copyrights –is their directivity to discover and develop the individuality of the author as a person. The institute of the personal non-property rights makes possible to distinguish one legal person from another, guards its originality and uniqueness. Certainly, each citizen possesses his own complex of the property rights, which also makes possible “to separate” him from others, but nevertheless non-property rights have priority during the individualization.30

The personal non-property rights appear apropos the nonmaterial goods, which do not have the economic content (independently of their connection with the property relations) and not separated from the personality (inalienable and not transmitted by other methods). In the content the personal non-property rights are absolute. In other words, the carrier of the personal non-property right resists the indeterminate circle of the persons, obligated to abstain from any disturbances of its personal non-property rights. The property and non-property rights exist not in isolation, but being tightly interwoven with each other. Thus, non-joinder of the name of one of the co-authors can lead to the fact that he will be deprived of rights to obtain the reward for the use of the work (for example, the alteration of narrative work into the dramatic and vice versa)31

29 Gadzhiev T. Neposredstvennoe primenenie sudami konstitucionnyh norm\\Ros.usticiya.1995№12С24

30Intellecyualnaya sobstvennost Grishaev C.P.Moskva.Urist 2009. C. 57

31Economicheskii analiz doktriny avtorskogo prava.sm.; Gorman R.A., Ginsburg J.C. Copyright for the Nineties. Cases and materials.- Charlottesville, Virginia, 1993. P.20-22.

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[1]Refer to Veinke. Avtorskoye pravo. Reglametacii, osnovy, buduscheye. М. 1979. P.15-22.

[2] Kantorovich Y. Literaturnaya sobstvennost. Saint-Pteresburg, 1896. P.10.

[3]Korosteleva S.V. Lichniye neimuschestvenniye prava avtorov i osobennosti ih realizatcii v Internet. М. 2006.

[4] Refer to Milgrom V Delo «Betamax»: dvennadcat let spustya // Intellectualnaya sobstvennost. 2001. №11/12. P.59.

[5] Hohlov V.A. Avtorskoye pravo: Zakonodatelstvo, teoriya, praktika. - М.: Publishing house «Gorodetc», 2008.

[6] Refer to Korneyeva I. L. Pravo intellectualnoy sobstvennosti v Rossiyskoy Federacii: Study guide. - М.: Yurist, 2006. P.92.

[7] Rafiyeva L.K. Chest i dostoinstvo kak pravovaya kategoriya. Pravovedeniye. 1996. №2 С.58.

[8] Refer to Motovilovker E.Y. teoriya regulyativnogo i ohranitelnogo prava. Voronezh. 1990. P.43-49.

[9] Bratus S.N. o otnoshenii grazhdanskoy pravosposobnosti i subyektivnyh prav. Sovetskoye gosudarstvo i pravo. 1949. №8. P.32-33.

[10] Refer to Strogovich M.S. Osnovniye voprosy sovetskoy socialisticheskoy zakonnosti. М. 1966. P.168.

[11] Halfina R.O. Obscheye ucheniye o pravootnoshenii. М. 1974. P.227.

[12] Gribanov V.P. Otvetstvennost za narusheniye grazhdanskih prav i obyazonostey. М. 2001. P.292.

[13] Meyer D.N. Russkoye grazhdanskoye pravo. Petrograd. 1914. P.117.

[14] Gambarov Y.S. Grazhdanskoye pravo: Obschaya chast. М. 2003. P.380.

[15] Shershenevich G.F. Uchebnik russkogo grazhdanskogo prava. М. 1911. P.58.

[16] Ioffe O.S. Grazhdanskoye pravootnosheniye. Izbranniye trudy po grazhdanskomy pravu. М. 2003.

[17] Ihsanov E.U. Avtorskoye pravo kak subyektivnoye grazhdanskoye pravo po zakonodatelstvu Respubliki Kazakhstan. Candidate of legal science’s thesis. Almaty. 2001. P.45.

[18] Refer to Kantorovich Y.A. Literaturnaya sobstvennost. With attachments of all decisions of active legislation concerning literature, art and musical property. – Saint- Petersburg., 1895. P. 28-30.

[19] Refer to Suleimenov M.K. Obyekty grazhdanskih prav. Monograph. Almaty. 2008. P.25.

[20] Refer to Pezner A.G. Ponyatiye i vidy subyektivnyh grazhdanskih prav. Dissertation abstract. Dissertation of candidate of legal science. М. 1961. P.10.

[21] Refer to Sergeyev A.P. Pravo intellektualnoy sobstvennosti v Rossiyskoy Federacii. Text book. Second publishing . - М. 2001. P.191-194; Bliznetc I., K. Leontiev. Intellektualnaya sobstvennost I iskluchitleniye prava. // IP. Avtorskoye pravo i smezhiye prava. - М., 2002 № 6. P.8-17.

[22] Popova I.V. Programma dlya EVM v sisteme obyektov avtorskogo prava. P.13.

[23] Kant. I. Von der Unrechtmaessigkeit des Buechernachdrucks // Berliner Monatsschrift. 1785. Mai.