Concepts "product" and «object of the copyright» are not identical. The first concept is wider, as the legislation names some categories of products which, possessing all signs protected by the copyright, owing to a different sort of the reasons are deduced from sphere of its action. To products which are not protected by the copyright, concern:
- Official documents (laws, judgements, other texts of legislative, administrative and judicial character), and also their official transfers;
- The state symbols and signs (a flag, the arms, a hymn, awards, monetary and other signs);
- Products of the national creativity which authors are not known.
The copyright also does not extend on ideas, processes, systems, methods of functioning, the concept, principles, opening or easier information as those even if they are expressed, displayed, explained or embodied in product.
Authors of products. The co-authorship
product copyright protect author
The copyright by the general rule arises at the author. The author of product the physical person which creative activity creates product admits.
If product is created by several persons, such persons admit co-authors. The co-authorship are the legal relations arising owing to the fact of joint creation of product by several persons.
The law names two conditions of occurrence of the co-authorship: 1) product should be created joint work of two or more persons; 2) work of all participating in creation of product of persons should have creative character.
Joint character of work should be estimated not on joint process of work, and by in common reached result; important not that, as well as in what form co-authors, and that product has grown out of their joint efforts worked. Therefore for co-authorship occurrence the joint work understood as activity of several persons, directed on achievement of the co-ordinated result what product creation is matters. Thus joint activity does not mean its unity in time and space, and only that authors work on product together, and each of them brings the contribution to its creation.
Co-authors those who has brought the creative contribution to product creation can admit only. The person who has not brought the creative contribution to product creation, and rendered only the technical help (a manuscript set, bibliography drawing up, a portrayal of sketches, etc.) cannot admit the co-author. Essentially important that the basis of occurrence of the co-authorship are actual is represented, instead of contractual relations of persons, and any agreement, including issued in writing, has no legal value if co-authors actually have not been do joint creative work.
Distinguish two kinds of the products created in the co-authorship: the products forming one indissoluble whole, and the products consisting of parts, each of which has independent value. The product part admits having independent value if it can be used irrespective of other parts of product. Accordingly, two kinds of the co-authorship - separate and unseparable differ. The separate co-authorship takes place when collective product consists of parts, each of which has independent value and thus it is known, by whom from co-authors these parts are created. In this case each of co-authors has the right to use the part of product created by it at own discretion if other is not provided by the agreement between co-authors. At the unseparable co-authorship the product created by two or more co-authors, or represents uniform indissoluble whole, or it is impossible to allocate the contribution of the concrete co-author to collective product. Therefore the copyright to the collective product created in the unseparable co-authorship, all co-authors in common carry out. The legislator, trying to provide interests of all co-authors, establishes, that in the event that product of co-authors forms one indissoluble whole, any of co-authors has not the right without the sufficient bases on that to forbid product use.
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The principle of the joint order product does not interfere with authors to enter into among themselves the agreement defining a procedure of the rights concerning collective product. By the legal nature the agreement of co-authors is one of versions of contracts on an order of using the right, similar to the contract of proprietors on an order of use of property.
Office products
The law of Byelorussia «About the copyright and the adjacent rights» defines office product as the product created as performance of the office task or official duties.
The law does not contain accurate definition of sphere in which norms about office products are applied. Nevertheless, it is possible to say that the concept "office" can be used only with reference to the products created within the limits of labour relations. The legislator uses the term "employer", definition to which is given in the Labour code of Byelorussia. According to item 1 ТК the employer is legal or the physical person to whom the legislation gives the right of the conclusion and the termination of the labour contract with the worker. Besides, the legislator uses concepts "official duties" and «the office task» which are applied in labour relations.
The first possible basis of a recognition of object of the copyright office is that its creation is included into official duties of the worker. The current legislation does not give that direct definition, that such "official duties". The labour code uses concept «office position of the worker» at definition of the term "post". Thus office position of the worker is defined by circle of its duties, the official rights and character of responsibility. Proceeding from it, it is possible to put an equal-sign between concepts "official duties" and «official duties». In turn, official duties assume presence of labour relations which should be issued the labour contract; in the labour contract or in duty regulations official duties of the worker also should be fixed. Thus, the status office can receive product in the event that its creation is included into labour duties of the author.
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The law «About the copyright and the adjacent rights» establishes a special legal status concerning office products. The personal non-property rights to the product created as performance of the office task or official duties (office product), belong to the author. Property rights on office product belong to the employer if the contract between it and the author does not provide other.
As follows from norm of item 14 of the Law, the presumption of an accessory of property rights on office product to the employer can be denied conditions of the prisoner between it and the author of the contract. The employer and the author in the labour contract (contract) can establish, that property rights on office product in full arise at the author; in this case its legal regime will not differ from a legal regime of the product created outside the limits of labor relations, and to the employer interested in its use, it will be necessary to conclude the author's contract with the worker. Property rights according to the agreement will be divided between the worker and the employer (on ways of use of product or territory on which the right will be carried out).
The law limits the author of office product in possibility to take advantage of the personal non-property rights belonging to it. In the event that the owner of property rights on office product is the employer, the author has not the right interfere with promulgation such intergovernmental cooperation administrative Besides, the author of office product cannot to carry out the right to a response also.
The recognition of property copyrights to office product for the employer deprives of the author of such product of the right to reception of compensation both the employer, and the third parties.
The literature
1. The copyright and the adjacent rights. Laws, conventions, договоры and agreements. - Minsk, 2010.
2. Intellectual property. The basic materials: In 2 parts the Translation from English, Novosibirsk, 1993.
3. Intellectual property. The Dictionary-directory/under the editorship of A.D. Korchagina. - M, 2011.
4. Savelyev I.V. legal regulation of relations in the field of art creativity. - М, 2009.
5. Serebrovsky V.I. Voprosy of the Soviet copyright. - М, 1956.
6. Sergeys A.P. Intellectual in the Russian Federation. TH., 2008.
7. Tchernyshev S.A. Аuthor's the contract. - М, 2011.