Along with the emergence and development of new technical ways of using works, in recent decades there have been less noticeable, but no less important phenomena related to the rethinking of the significance of works and their individual elements for the modern market, the paradigm shift in the organization of commercial use of the results of creative activity of authors.
Until recently, most works had a specific purpose, which, as a rule, limited the sphere of their preferential use: books were intended for readers, films - for television viewers and cinema visitors, drawings - for illustrations of books and magazines, etc. Screen versions of books were considered as a separate area of use of works not directly related to their publication, and the purposeful use of titles, characters and other elements of works in commercial activities was rare.
The situation began to change gradually in the second half of the 20th century, when producers of goods began to increasingly use elements of famous works to promote their products among consumers. The film and television industry turned out to be one of the most sensitive spheres of creative activity to the spirit of the times, as a result of which, more and more often when creating films and TV series, their producers analyze options for the possible subsequent commercial use of their titles, individual images, characters and other elements already at the initial stage and take measures for their proper legal protection.
It should be recognized that legal science and judicial practice were not ready for the new level of challenges they face, which is due to both the novelty of emerging problems and the lack of skills to develop reasonable unified approaches that meet the interests of market participants.
For commercial activities, the most important elements of a work are primarily small, easily remembered elements that can attract the attention of consumers and encourage them to buy goods from certain manufacturers, watch certain television programs, or use the services of certain companies. In this regard, a memorable title of a work or a recognizable image of a character can be as valuable as the content of the work itself.
However, effective protection of such "small elements" of works can be provided, as a rule, only through registration of trademarks with all the disadvantages inherent in this way, including the duration of registration procedures, costliness, limited protection by the declared classes of goods and services, etc.
The optimal option would be to protect such elements precisely through copyright, given the automatic emergence of protection and the absence of formalities. However, in accordance with the established tradition, when granting copyright protection, both at the doctrinal level and within the framework of consideration of cases on violations of exclusive rights to works, attempts are made to identify the "creative character" of the elements of the work, and often in isolation from the work itself.
Meanwhile, there are no clear criteria of "creativity" as an activity leading to the creation of a work. Thus, more than half a century ago, Professor V.I. Serebrovsky noted the difficulty in drawing "the boundary ... between the results of labor protected by copyright and copyright not protected". Even earlier Professor G.F. Shershenevich, proposing an abstract definition of a work as "a product of spiritual creativity, clothed in a certain form and intended for circulation in society", at the same time refrained from defining the concept of "creativity" or the term "spiritual creativity" used by him.
Modern authors also define the concept of "work" through the concept of "creativity", and, for example, in the definition given by Professor E.A. Sukhanov, the emphasis is not on the possibility of determining the presence of creativity, but rather on the fact that the result, the creation of which lacked creativity, cannot be recognized as a work: "Copyright applies to works of science, literature and art, firstly, being the result of creative activity, and secondly, existing in any objective form. The absence of any of the above criteria does not allow us to speak about the existence of a work as an object of copyright."
Among famous Russian civilists only V.Y. Ionas expressed an optimistic idea about the possibility of "believing harmony with algebra" and developing objective criteria for determining the presence or absence of creativity in a work: "elements of creativity, strictly speaking, are objective to such an extent that, having an appropriate scientific instrument, we should be able to establish them with the same accuracy as an experimenter establishes an empirical fact". Unfortunately, he did not propose a specific scientific toolkit for solving the above problem.
It seems that the difficulties of solving the issue of assessing the conformity of a work with the criterion of creativity are primarily due to the fact that such assessments, as well as the very understanding of "creativity" and "creative activity" will inevitably be subjective in nature. Not only that, it can be argued that depending on the development of society, its culture and economy, the assessment and understanding of these categories must change, evolve, in order to timely take into account the change, on the one hand, of perceptions of fairness and integrity, and, on the other hand, of the needs of the modern market economy, including at the international level.
The current legislation provides for a very flexible and, one could say, universal approach to the definition of copyright objects, noting that they should include works of science, literature and art regardless of their merits and purpose, as well as the method of expression (paragraph 1 of Article 1259 of the Civil Code of the Russian Federation). This approach at the international level was laid down by the Berne Convention for the Protection of Literary and Artistic Property.
It is interesting to note that in their explanations Russian courts of higher instances went even further, recognizing the need for a "presumption of creativity". Thus, in paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation № 5, the Plenum of the Supreme Arbitration Court of the Russian Federation № 29 of 26.03.2009, it was noted that "when analyzing the question of whether a particular result is an object of copyright, the courts should take into account that ... such is only the result that is created by creative labor. It should be borne in mind that until proven otherwise, the results of intellectual activity are assumed to have been created by creative labor". Similar provisions were included in the Resolution of the Plenum of the Supreme Court No. 10 of 23.04.2019.
Thus, the creative nature of the creation of the work is presumed, therefore, the author or other right holder is not obliged to prove that the work is the result of creative activity. This does not exclude the possibility for other persons to challenge the creative nature of the activity that led to the creation of the work. For example, evidence of lack of creativity may be the proven fact of borrowing or the fact that the result was achieved by following a certain known algorithm: "It is traditionally recognized that copyrighted objects are not the results of activities carried out according to any algorithm.".
But it is the fact of lack of creativity that is subject to proof, and until the presumption of creativity is rebutted, the work must be recognized as enjoying copyright protection. Not only that, in paragraph 80 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 23.04.2019 № 10 "On the application of Part Four of the Civil Code of the Russian Federation" states that "it is also necessary to take into account that the mere lack of novelty, uniqueness and (or) originality of the result of intellectual activity can not indicate that such a result is not created by creative labor and, therefore, is not an object of copyright". Hence, for the Objects to be recognized as copyrighted works, it is not required that they meet any other specific criteria, in particular, originality is not required.
Copyright protects not only the work as a whole, but also any part of it that can be considered as a work (Article 1259(7) of the Civil Code of the Russian Federation), provided that such part can be recognized as an independent result of the author's creative work and has been expressed in any objective form. Thus, copyright protects not only the work as a whole, but also any part of it, title, character, down to any paragraph, sentence, phrase or even word, provided that the "presumption of authorship" applicable to such elements cannot be rebutted.
This approach has been tested by judicial practice. Thus, the Judicial Board for Civil Cases of the Supreme Court of the Russian Federation in its Decision No. 5-KG15-58 of June 23, 2015 recognized the possible protection not only of the title of the work as a whole, but also of the title of a part of the work or other original phrase included in the work.
When considering the case on the claim of Nekrasova N.N., Zabelina Z.V. against ZAO "Publishing House Centerpoligraf", the plaintiffs justified their claims by the fact that they are co-authors of the original phrase "To love without conditions, to raise without effort", which is the name of the first part of the plaintiffs' book "Stop bringing up children - help them to grow" published in 2006. This part of the book under the same title "Love Unconditionally, Raise Effortlessly" was distributed by the plaintiffs as an independent work in the form of an electronic book. Defendant published a book by another author in 2010 with the title "Love Unconditionally, Raise Effortlessly. Secrets of Smart Parenting for Children 3 to 18. A Superunique Parenting Guide."
The court noted that in accordance with Article 1259 of the Civil Code of the Russian Federation works of science, literature and art are objects of copyright regardless of the merits and purpose of the work, as well as the manner of its expression, and, in the opinion of the court, the presence of commonly used words in a phrase does not in itself mean that the phrase in its general content is commonly used and is not an object of copyright.
Indeed, the internationally recognized principle of protection of a work irrespective of its purpose and dignity implies that any objectively expressed results of creative activity should be protected, except those in respect of which the creative nature of the activity of creation can be disproved. Thus, the principle of protection of a work regardless of its purpose and dignity and the "presumption of creativity" are in an inseparable logical connection with each other.
An approach based on the recognition of the "presumption of creativity", if consistently applied and taking into account the principles of reasonableness, fairness and good faith, which are fundamental to modern civil law, would seem to be able to satisfy to the greatest extent the interests in both the stability of the approaches used and the protection of all the most valuable elements of works, including for their successful use in creative and commercial projects.
Author of the article: Dmitry Ivanov
