Author of the article: Ivanov D.A.
In the conditions of insufficient detailing of copyright legislation provisions, their application largely depends on the emerging judicial practice, which, in turn, often depends on subjective interpretations of legislative norms and requirements when considering individual court cases. It is difficult to explain the decisions taken in some cases from the point of view of traditionally established views.
For example, it is traditionally recognized that protection is granted to works of science, literature and art regardless of their purpose and dignity, as well as their mode of expression. The use of a work in advertising had no influence on the decision to recognize it as a protected object of copyright. If such use was carried out without the consent of the author or other right holder, such use was considered as an infringement of exclusive rights to the work.
However, in a series of recent court decisions in case No. A40-182810/2022, supported by the Court for Intellectual Property Rights, a conclusion was formulated that a sufficiently voluminous and generally original advertising text does not meet the characteristics of an object of copyright, since it is an "information message". The problem is not the denial of protection in any one particular case, but a change in the previously accepted approaches, without specifying in which cases such changed approaches are to be applied in the future.
In the conditions of insufficient detailing of the provisions of copyright legislation, their application largely depends on the emerging judicial practice, which, in turn, often depends on subjective interpretations of legislative norms and requirements when considering individual court cases.
At the same time, the decisions taken in some cases are difficult to explain in terms of traditional perceptions.
For example, it is traditionally recognized that protection is granted to works of science, literature and art regardless of their purpose and dignity, as well as their mode of expression (paragraph 1 of Article 1259 of the Civil Code of the Russian Federation, hereinafter - the Civil Code of the Russian Federation). Thus, copyright protection of works has not ceased to be enjoyed when they are used in advertising, which according to the legal definition is understood as "information disseminated by any means, in any form and using any means, addressed to an indefinite circle of persons and aimed at attracting attention to the object of advertising, forming or promoting interest in it and its promotion in the market".
The use of a work in an advertisement had no influence on the issue of recognizing it as a protected object of copyright. If such use was made without the consent of the author or other right holder, such use was considered to be an infringement of exclusive rights to the work.
To recognize any object as a "work" it was required that such object should be the result of creative activity expressed in an objective form. However, due to the lack of objective criteria of "creativity" in civilist doctrine, it was usually assumed that creative activity takes place if it is not carried out according to any pre-known algorithm or is not reduced to repetition, reproduction of pre-existing works, as opposed to "reproductive activity expressed in the reproduction of ready-made thoughts or images according to the rules of formal logic or other known rules".
The use of works in advertising did not in any way diminish their importance, and, as noted above, did not affect the resolution of issues related to their protection. In addition, Russian jurisprudence has usually proceeded from the criterion of having at least a minimal level of creativity, protecting the results of even minimal creative activity, which was often presumed.
However, in a series of recent court decisions in case No. A40-182810/2022, supported by the Court for Intellectual Rights, a conclusion was formulated that a sufficiently voluminous and generally original advertising text does not meet the signs of copyright, because it is an "information message".
The plaintiff (an individual entrepreneur) filed a claim with the Arbitration Court of Moscow to recognize the exclusive right to the following advertising text, which, in the plaintiff's opinion, represents a work of literature protected by copyright:
"That's not all the gifts! I have even more valuable information for you!!! I'll give it to you on the airwaves as early as tonight at 7:00pm! You probably want to take control of your finances so you can save more. Do you want to save less and get more? Then connect investments! It is available to everyone even with 1000 rubles in your pocket! In the broadcast you will learn: What opportunities are available to those who invest; What tools can be used for this; What are the first steps to take to implement investments in your daily life! You will be able to put together a set of tools for yourself where you can put your savings away and make money from it. Don't miss the opportunity to improve your financial health, and sign up for a FREE class right now."
The plaintiff also requested that information about the defendant's copyright infringement be posted on the Internet, that the illegally posted text be removed, and that the defendant be compensated for the infringement of exclusive rights.
The decision of the Moscow Arbitration Court dismissed the claim; the appellate instance found no grounds to review the case, in connection with which the plaintiff filed a cassation appeal with the Intellectual Property Rights Court. In support of its claims, the plaintiff pointed out that the cited text was not a simple "information message", but was "a composite work, which was created as a result of the author's creative labor and has its own style of presentation".
The court found that the plaintiff is the founder of an online school with investment courses, the course materials are posted on the Internet, and the above text is used in a chatbot in the messenger Telegram as a response to users' requests.
On appeal, the court noted that "the plaintiff has not substantiated what exactly in the disputed text is the object of copyright, as well as what specifically expresses the creative component or creative efforts of the plaintiff". Interestingly, usually such claims are not made against plaintiffs or authors of works, according to paragraph 80 of the Resolution of the Supreme Court of the Russian Federation No. 10 of April 23, 2019 "until proven otherwise, the results of intellectual activity are presumed to have been created by creative labor."
The Intellectual Property Rights Court in its Ruling of October 18, 2023, No. No. S01-1716/2023 in the case No. A40-182810/2022 referred to the fact that according to subparagraph 4 of paragraph 6 of Article 1259 of the Civil Code of the Russian Federation are not objects of copyright "reports on events and facts that are purely informational in nature (reports on the news of the day, TV programs, vehicle schedules and the like)", as well as the provisions of Article 2(8) of the Berne Convention for the Protection of Literary and Artistic Works of 1886 (as amended in 1979), according to which protection "does not extend to the news of the day or to various events having the character of mere press information".), according to which protection "does not extend to the news of the day or to various events having the character of mere press information".
Of interest are the criteria, compliance with which, in the opinion of the Court of Intellectual Rights, should be verified when deciding whether to grant protection: "In determining the protectability of messages of an informational nature, the court must determine whether such messages have signs of originality, uniqueness, individual author's style of text presentation, whether they reflect the author's own view of the events described, or whether they convey information about events of objective reality with the use of stable turns of official language.
Regardless of which text we are talking about, one cannot but be surprised by the originality of the approach adopted by the IP Court in this case, according to which the author is required to prove the presence of "originality, uniqueness, individual author's style", which directly contradicts the explanations given earlier by the Supreme Court of the Russian Federation that "the mere absence of novelty, uniqueness and (or) originality ... cannot be evidence that such a result was not created creatively. The Intellectual Rights Court also used the concepts of "mechanical work of an average journalist", "uniqueness", "author's view of the events described", etc., which apparently require a separate definition.
At the same time, with reference to Article 65 of the APC RF, the Intellectual Rights Court placed the burden of proving the "presence of creativity" on the person who applied for protection of rights, referring to the fact that "the qualification of the disputed text as a literary work or an information message depends on the establishment of the existence of an object of copyright".
In the opinion of the Court of Intellectual Rights, the plaintiff's claims were rightfully denied, since the disputed text is an uncreative message of an advertising and informational nature and is not an object of copyright.
In this case, the problem is not the denial of protection in any one particular case, but the modification of the approaches previously accepted, without specifying in which cases such modified approaches are to be applied in the future. Arguments about the possibility of independent creation, borrowing of unprotected elements, common sources, etc. could be used to defend the defendant, without specifying in which cases such modified approaches are to be applied in the future. Arguments about the possibility of independent creation, borrowing of unprotected elements, common sources, etc. could be used to defend the defendant.
Но признание в целом неохраняемым достаточно объемного текста, созданного без использования какого-либо формального алгоритма, с возложением на автора или правообладателя обязанности доказывания творческого характера его создания, представляется недостаточно обоснованным отходом от тех постулатов, на которых ранее базировалась судебная практика и которые неоднократно получали закрепление в разъяснениях судов высших инстанций.
[1] Paragraph 1 of Article 3 of the Federal Law of 13.03.2006 № 38-FZ (ed. of 19.04.2024) "On Advertising".
[2] Civil Law: In 4 vols. Vol. 2: Property Law. The law of inheritance. Exclusive rights. Personal non-property rights / Edited by E.A. Sukhanov. 3rd ed., rev. and add. M.: Wolters Kluwer, 2007. - С. 280.
[3] Intellectual Property Law / I.A. Bliznets, E.P. Gavrilov, O.V. Dobrynin, et al; ed. by I.A. Bliznets. - Moscow: Prospect, 2010. С. 46.
[4] Jonas V.Ya. Works of creativity in civil law. М., 1972. С. 9-10.
[5] Resolution of the Intellectual Property Rights Court of October 18, 2023, No. C01-1716/2023 in case No. A40-182810/2022 // URL: https://www.garant.ru/products/ipo/prime/doc/407796559/
