Architectural object in the right of intellectual property
The entire history of the development of the state and human society was also interested in the legal regulation of the surrounding objects. Many factors contribute to the development of society, the improvement of human living conditions, including living conditions and habitats. In this article, an architectural object will be considered as an object of intellectual property rights.
An architectural object is defined as a building, structure, complex of buildings and structures, their interior, objects of improvement, landscape or gardening art, created on the basis of an architectural project - Art. 2 of the Federal Law of November 17, 1995 No. 169-FZ (as amended on July 19, 2011) "On Architectural Activities in the Russian Federation" (hereinafter - the Federal Law "On Architectural Activities in the Russian Federation"). Based on this definition, we can conclude that an architectural object means not only the created structures, but also the documentation that is primary in the implementation of the project, containing architectural solutions that comprehensively take into account social, economic, functional, engineering, technical, fire, sanitary and epidemiological, environmental, architectural, artistic and other requirements for the object in the amount necessary for the development of documentation for the construction of objects in the design of which the participation of an architect is required - Art. 2 of the Federal Law "On architectural activity in the Russian Federation". It should be emphasized that the documentation containing architectural solutions, and not all documents related to construction objects, acts as an architectural object.
When determining the methods of legal protection, it is necessary to determine which of the institutions of law the architectural object will relate to. According to the provisions of Art. 1259 of the Civil Code of the Russian Federation, works of architecture, urban planning and gardening art, including in the form of projects, drawings, images and layouts, are objects of copyright.
In accordance with paragraph 4 of Art. 1259 of the Civil Code of the Russian Federation , registration of a work or compliance with any other formalities is not required for the emergence, exercise and protection of copyright , however, the author of the work, at his own request, can carry out the deposit procedure. As a rule, the deposit of a work is carried out in order to provide additional evidence of authorship in litigation. The work is registered in special registers with the subsequent issuance of a certificate of deposit.
One of the ways to use copyright in a work in accordance with the provisions of paragraph 2 of Art. 1270 of the Civil Code of the Russian Federation stands for the practical implementation of an architectural, design, urban planning or landscape gardening project; and with regard to documentation , the reproduction of the work <…>; distribution of the work by sale or other alienation of its original or copies; public display of the work; import of the original or copies of the work; processing is there.
As a rule, the customer turns to the architect for the practical implementation of the project; in this case, the relationship between the parties is subject to settlement by concluding an author's order agreement or an employment contract. In accordance with paragraph 2 of Art. 1288 of the Civil Code of the Russian Federation , an author's order agreement may provide for the alienation to the customer of the exclusive right to a work that should be created by the author, or the granting to the customer of the right to use this work within the limits established by the agreement. It should be noted that an employee work is created under an employment contract, and in accordance with paragraph 2 of Art. 1295 of the Civil Code of the Russian Federation, the exclusive right to an employee work belongs to the employer, unless otherwise provided by the labor or civil law contract between the employer and the author. In other words, it is assumed that under the concluded employment contract, exclusive rights to architectural objects belong to the customer (unless otherwise provided), while the author's order agreement provides the architect with the opportunity to dispose of exclusive rights through the conclusion of license agreements or an agreement on the alienation of exclusive rights.
When alienating exclusive rights, the parties must be guided by the provisions of the Civil Code on agreements on alienation. Since an architectural object, as an object of copyright, is not subject to state registration, accordingly, the alienation of the exclusive right to an architectural object is not registered. It should be emphasized that the right of authorship, the right to a name and other personal non-property rights of the author are inalienable and non-transferable. Waiver of these rights is void. Authorship and the name of the author are protected indefinitely - paragraph 2 of Art. 1228 of the Civil Code of the Russian Federation.
Despite the direct reference in the law to the institution of copyright, it should also be noted that an architectural object can be protected using the mechanisms used in the field of patent law. In other words, the owner of exclusive rights to a work can register an architectural object as an invention and obtain a patent for it. An invention is granted legal protection if it is new, has an inventive step and is industrially applicable - paragraph 1 of Art. 1350 of the Civil Code of the Russian Federation. An example is patent for invention No. 2632793. As indicated in the abstract to the invention, the invention relates to the field of construction of mobile buildings transformable into the volume of a transport container. Patenting architectural objects expands the ways of protecting exclusive rights, in addition, the right holder has the opportunity to issue licenses for granting the right to use the result of intellectual activity. The legal relations that have arisen between the licensor and the licensee will be governed by the provisions of the Civil Code on the license agreement. In this case, when an architectural object is registered as a patent, the contracts confirming the disposal of the exclusive right must be transferred to the authorized body in order to register the said disposal of the exclusive right.
In addition to the methods of disposing of exclusive rights listed in the Civil Code, an architect has the right to take part in the process of bringing an architectural project to life. The rights of an architect are listed in Art. 12 of the Federal Law “On Architectural Activities in the Russian Federation” and include the right to request and receive from the relevant authorities an architectural and planning task, other information and source documents <…>; protect architectural solutions agreed with the customer (developer) during their examination and consideration by the relevant authorities; participate in the development of all sections of documentation for construction <…>; involve on a contractual basis in the development of documentation for the construction of the necessary assistants, consultants and technical workers < ...>; represent and protect the interests of the customer (developer) on his behalf when concluding a contract for the construction of an architectural object; assist in the organization or conduct of tenders (auctions or competitions) for the conclusion of construction contracts ; carry out architectural supervision <…>; take part in the acceptance of an architectural object for operation or, on behalf of the customer (developer), be his responsible representative when accepting the specified object for operation ; consult on investment, construction and operation of architectural objects, as well as perform other functions of the customer (developer).
Based on the provisions of the Civil Code on objects of copyright, it should be noted that an architectural object must be an independent result of the author's creative work - paragraph 7 of Art. 1259 of the Civil Code of the Russian Federation. As a rule, the authors really independently develop architectural objects, due to the complexity of their implementation in the material world, these objects require an individual approach from the project developers, but we must not forget that creative activity gives rise to the formation of an individual style. Style in architecture is included in the general concept of style as an artistic worldview, covering all aspects of the art and culture of society in certain conditions of its social and economic development. In the field of architecture, which represents one of the spheres of material production, Style acts as a unity of ideological, artistic, functional and constructive content. Style is formed on the basis of certain conditions for the development of society in a particular time period, in conjunction with the ideological and artistic perception of the world around the author. The law does not define such a concept as the author's style, in this regard, we consider it necessary to pay attention to the fact that the developed style of the author, especially if it is recognizable, can be copied by other persons. The closest concept from the legal sphere to the definition of style can be considered design, however, in our opinion, the concept of design is still narrowly focused. The object of design can be an already embodied building, structure, complex of buildings and structures, their interior, objects of improvement, landscape or garden art , that is, a completed construction object, while the style covers all architectural objects, starting with the relevant documentation.
Proceeding from the foregoing, it can be concluded that despite the sufficient number of rules governing legal relations relating to architectural objects, there are currently many issues that require more thorough theoretical and practical study.