Alternative Ways of Disposing of the Exclusive Right

In the context of the dynamic development of economic relations and information technology, along with traditional forms of disposal of exclusive rights, such as license agreements, more flexible and accessible mechanisms are emerging that ensure the freedom of use of the results of intellectual activity without significant legal barriers.

In recent decades, alternative methods of disposing of exclusive rights have become popular, which provide copyright holders with the opportunity to voluntarily transfer the rights to their intellectual property to a wide range of users, while maintaining control over the terms of use.

The Civil Code of the Russian Federation distinguishes the following alternative ways of disposing of exclusive rights: public statements (paragraph 5 of Article 1233 of the Civil Code of the Russian Federation) and open licenses (Article 1286.1 of the Civil Code of the Russian Federation), which facilitate access to works of science, literature and art, as well as objects of related rights. These mechanisms allow authors and copyright holders to establish conditions for the use of their works in a more transparent and accessible form, often without the need to conclude individual contracts with each user. Public statements and open licenses strike a balance between the interests of rights holders and users, allowing greater flexibility in the use of works while meeting minimum requirements.

A public statement about the possibility of using works of science, literature or art

According to paragraph 5 of Article 1233 of the Civil Code of the Russian Federation, the right holder may make a public statement about granting any person the opportunity to use his works of science, literature or art free of charge, as well as objects of related rights. A public statement is made by communicating to an indefinite number of persons, which implies wide availability of information and the possibility of using works by all interested parties.

An application of this kind must contain information that makes it possible to identify the right holder and the work or object of related rights in respect of which the right of use is granted. Another important aspect is that the right holder must establish the conditions for the use of the work, as well as indicate the period for which this right is granted, and the territory of use extends to the territory of the Russian Federation.

To ensure transparency and availability of information, the application of the right holder is posted on the official website of the federal executive body on the Internet. This decision is aimed at creating a single platform where interested parties can find information about works and objects of related rights available for use free of charge. An important part of this process is the obligation of the federal executive body to establish the procedure and conditions for posting such applications, as well as to monitor their correctness and completeness.

A declaration made by the right holder has a certain legal effect. It cannot be revoked within a specified period, and the conditions for the use of a work or object of related rights cannot be changed.

However, this provision does not apply if the right holder has already entered into a license agreement granting the exclusive right to use the work or object of related rights within the same limits. In this case, the public statement has no legal force, and if the right holder makes a public statement in violation of the current license agreement, he is obliged to compensate for the losses caused to the licensee.

In addition, it is important to note that the right holder, whose exclusive right has been violated by the unlawful placement of such a statement, has the right to demand the application of measures to protect the exclusive right, including within the framework of Article 1252 of the Civil Code of the Russian Federation.

The legislator has also provided for an exception for open licenses determined by Article 1286.1 of the Civil Code of the Russian Federation. Article 1233, paragraph 5, does not apply to such licences, which underlines the distinction between a public statement and an open licence as a legal mechanism.

An open license to use a work of science, literature, or art

Article 1286.1 of the Civil Code of the Russian Federation was introduced in 2013 and regulates the legal regime of open licenses, which is a relatively new mechanism for disposing of intellectual property rights.

An open license differs from traditional license agreements in that it grants the right to use works or objects of related rights without entering into individual agreements with each user. This form of licensing is becoming increasingly popular, especially in the field of software, scientific research, and cultural projects.

In Article 1286.1 of the Civil Code of the Russian Federation, an open license is defined as a legal mechanism in which the right holder transfers the rights to use a work or an object of related rights to an indefinite number of persons on predetermined conditions. This allows any interested person to use the intellectual property within the established conditions.

The main purpose of an open license is to ensure the ease and accessibility of works and intellectual property, to stimulate the exchange of knowledge, innovation and cultural values, as well as to create a legal basis for the distribution and processing of content in the public domain.

The law provides that the terms of an open license must be clear so that users can easily understand what they can do with the work and what restrictions exist on this.

The main difference between an open license and a traditional license agreement is that  an open license does not require individual agreement with each user. The copyright holder, having granted an open right to use the work, formulates the terms in advance and places them in the public domain, for example, on his website or through platforms that support open licenses.

In traditional license agreements, the copyright holder enters into an agreement with each person, granting him the right to use the work on strictly specified terms. In contrast, an open license allows many users to use the work according to predetermined rules, which greatly simplifies the process and makes it accessible to a wide range of people.

Although an open license provides flexibility in the use of works, it does not deprive the copyright holder of the ability to protect his copyright. In case of violation of the terms of the license, the right holder may apply for the protection of his rights, demanding the fulfillment of the terms of the license or the application of sanctions provided for by law, including measures to protect the exclusive right provided for in Article 1252 of the Civil Code of the Russian Federation.

The main differences between open licenses and a public statement are as follows:

1. Terms of Use:

• Open Licenses provide flexible terms for the use of works, including the ability to modify, distribute, and commercially exploit, depending on the type of license.
• A public statement establishes strictly limited conditions for the use of the work, which are determined by the copyright holder, and cannot be changed or withdrawn within a specified period.

2. Mechanism of transfer of rights:

• An open license allows the reuse of a work without the need for separate contracts, providing universal conditions for all users.
• A public statement also grants the right to use the work, but with the mandatory observance of the conditions specified in the application, and it is valid for a certain period and territory.

3. Recallability:

• An open license can be changed or canceled by the copyright holder at any time, but the terms and conditions in effect until cancellation remain.
• A public statement may not be revoked within the prescribed time limit.

An open license provides greater and more flexible options for the use of works, whereas a public statement implies stricter and more limited conditions.

Thus, alternative ways of disposing of exclusive rights, including public and open licenses, play an important role in the development of a modern system of intellectual property management. They contribute to the expansion of access to knowledge and culture, stimulate innovation and provide legal protection for the interests of all participants in the intellectual property market.