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Articles

The legal protection of photographic works on the Internet

July 09,2019

The photographic works (hereinafter referred to as the photographies) and the works obtained by the methods similar to photography, according to Paragraph 1 of Article 1259 of the Civil Code of the Russian Federation (hereinafter referred to as the C.C.R.F.), shall be referred to the copyright subject matters and the person, by whose creative labour they have been created, shall be recognized as their author (Article 1257 of the C.C.R.F.).

The following shall be traditionally referred in literature to the criteria for the recognition of the result of the intellectual activity as a subject matter of the copyright:

1.         A creative character of labour. According to Article 1257 of the C.C.R.F., the author of the work shall be recognized to be the person by whose creative labour it has been created.

2.         The expression of the work in an objective form. Pursuant to Paragraph 3 of Article 1259 of the C.C.R.F., the copyrights shall cover both the promulgated and non-promulgated works expressed in any objective form.

Thus, we can conclude that the copyrights to any photographic works regardless of the merits and purpose are referred to the copyright subject matters in accordance with Article 1259 of the C.C.R.F. and also regardless of whether they are made by a professional or an amateur, with a high-tech camera or a mobile telephone, they will be protected equally by the civil law on the basis of Article 1265 of the C.C.R.F., provided they meet the above said criteria.

The provisions of Article 1265 of the C.C.R.F. enshrines the right of the individual, by whose labour the work has been created, to be recognized as the author of this work and the right to a name, that is the right to use or to permit the use of the work under the author’s name, under a fictious name (pseudonym) or without an indication of the name, that is anonymously. Such rights shall be inalienable and non-transferrable, including, if the exclusive right to the work is transferred to another person, or if he is provided with the right to use the work.  The waiver of the right to be recognized as the author is void.  In accordance with the C.C.R.F., the results of the creative activity: the works of science, literature and art, shall be protected and defended.  The authors of such works shall possess a particular set of the rights of a property and personal (non-property) character.

The following can be implemented in respect of the photographic works: the right to reproduce, the right to distribute the copies of the works, the right to import the copies of the work for the purposes of their distribution, the right to a public display, the right to broadcast, the right to bring to the public by cable, the right to reprocess, the right to bring to the public, including by using online access.

The property rights, as well as the right to publish the works, are being valid during the entire life of the author and also during 70 years after his death, other personal non-property rights shall be protected without limit in time and shall not be descendable. After the death of the author, they can be implemented by the person appointed by the author during his lifetime, the author’s heirs, their successors and other interested parties.

When recognizing the photographic works as the copyright subject matters, it should be borne in mind that, according to the legal position set forth in Unnumbered Paragraph 3 of Paragraph 80 of Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10 of 23.04.2019 “On the Application of Part Four of the Civil Code of the Russian Federation,” “the mere fact of the lack of novelty, uniqueness and (or) originality of the result of the intellectual activity can not indicate to the fact that such result has been created not by creative labor and, therefore, it shall not be the copyright subject matter.”

Speaking about the methods for defence, the copyrights in the Russian Federation, as well as other intellectual rights, are defended by the methods stipulated by the C.C.R.F. and “taking into account the essence of the violated right and the consequences of the violation of this right” (Paragraph 1 of Article 1250 of the C.C.R.F.).

The main difficulty of a photographer in the court as the author of a photographic work is just to prove his authorship. To begin with, it is necessary to consider such method for the copyright defence as self-defence stipulated by Article 14 of the C.C.R.F. This article implies the use by the authors of preventive methods to defend their works, which help the author to avoid the violation of his rights. So, the author of the photographic works can undertake a number of measures that will help him to protect his photographies:

One of the most effective preventive methods for defence is the publication of one’s works in the mass media, magazines, exhibitions, etc.

Also, the experienced photographers, who use the professional photographic equipment in their activity, in order to defend their rights, can use an option of automatic embedding a digital watermark, which allows identifying the author in the future.

In addition, the authors are recommended to save their RAW-negatives (sources) in the archive of the photographic camera or on the computer. Indeed, in this case, it is enough for the photographer to present the photographic camera in the court, with the help of which the photography has been taken, or a “naked” unprocessed photography in order to prove his authorship. Due to the importance of the sources as evidence of the authorship in the future, it is not recommended to transfer the RAW-negatives, the source files, the working materials to other persons.

Also, before placing the photographies, the photographers should place the information about themselves on the very photography; most often this is the name, the last name and the year, when the photography has been first published. However, this option can sometimes spoil an appearance of the work.

The copyright, as stated in the C.C.R.F., shall arise from the moment the work is created, and the registration of this right shall not be mandatory. The majority of the lawyers nevertheless strongly recommend registering (depositing) the copyrights, as this may become the main evidence in the court. Such procedures are carried out by the copyright societies and Internet services.

Also, the notarization of the content of the works, the date and the person, who has appeared for the notarization, is a reliable and well-proven in practice method for the copyright protection.

However, if the author has not resorted to the measures for the copyright protection, or his copyrights were nevertheless violated after such resorting, one should use the methods for defence stipulated by the C.C.R.F. Two cases are emphasized, when the copyright holders can carry out defending their rights, namely, at the violation of the terms of the agreement on granting the copyrights, as well as at the non-contractual violation of the copyrights.

Defending the personal non-property rights in these cases can be carried out by the general methods for defence of the civil rights specified in Article 12 of the C.C.R.F., as well as by the methods specified in Article 1252 of the C.C.R.F. on defence of the exclusive rights, which shall be carried out through the legal proceedings by filing the claims:

•   on recognizing the right – against the person, who denies or does not otherwise recognize the right, thereby violating the interests of the rights holder;

•   on suppressing the actions that violate the right or create a threat of its violation, – against the person, who is committing such actions or carrying out the necessary preparations for them, as well as against other persons, who can suppress such actions;

•   on recovering damages – against the person, who has used illegally the work without concluding an agreement with the right holder or who has otherwise violated his exclusive right and caused him damage. According to Article 1301 of the C.C.R.F., the authors, performers and other holders of the exclusive rights to the works shall be entitled, along with using other applicable methods for defence and the measures of responsibility, to claim by their choice from the violator, instead of recovering damages, the special payment of damages for the violation of the exclusive rights, where the quantum of damages shall be determined by the court within the limits stipulated by the C.C.R.F., depending on the character of the violation and other circumstances of the case, taking into account the requirements for reasonableness and equitableness (Unnumbered Paragraph 2 of Paragraph 3 of Article 1252 of the C.C.R.F.), and to claim from the violator the payment of damages for each case of the illegal use or for the committed offense as a whole;

•   on recovering the income gained by the violator as a result of the violation of the copyright and the related rights, instead of recovering damages;

•   on seizing the tangible medium – against its manufacturer, importer, keeper, shipping carrier, seller, other distributor, unfair purchaser.

•   on publishing the court decision on the violation committed with the indication of the actual right holder – against the violator of the exclusive right.

In addition, Part IV of the C.C.R.F. also stipulates the special methods for defence applied at the violation of the intellectual rights in particular cases, such as:

•   prohibiting the defendant to perform particular actions for the purposes of introducing into the civil circulation the copies of the work or the subject matter of the rights in respect of which it is assumed that they are counterfeit;

•   arresting the copies of the works or the subject matters of the related rights in respect of which it is assumed that they are counterfeit, as well as the materials and equipment used or intended for their manufacture or reproduction.

Defending the honor, dignity and business reputation of the author shall be carried out in accordance with the general provisions of Article 152 of the C.C.R.F.

Many users find the Internet to be an open space, where everything is publicly available. However, it is impossible to agree with this, because if someone uses other person’s photography, he must observe the requirements for citing photographies, namely:

  • it is necessary to indicate the author of the work and the source of borrowing;
  • the photography should be used for scientific, informational, educational or cultural purposes;
  • the volume should be justified by the purpose of citing

In the case of non-observance of these requirements, one should speak about the violation of the rights and the illegal use of the photographic works.

Thus, we can conclude that nowadays the photographers have a sufficient number of the methods to defend their rights.

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