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Is a contract a copyright object?

19 Aug 2020 (updated at 02 Jun 2021)
Head of Department

It is interesting if the contract is a copyright object, isn’t it? Honestly, starting to write this article, I have not yet found the answer to this question and do not yet know if I will find it by the end of the article, but I promise that I will try to do it.After reading the opinions of lawyers practicing in the field of intellectual property, I realized that there is no consensus among my colleagues on this issue either. Some say that a contract is not an object of copyright, since it is not a literary work, since its creative nature is not obvious, and the sequence of setting the rules of law in a contract cannot be recognized as creative activity.Others, on the contrary, argue that the texts of contracts drawn up either by a lawyer or a nanny in the kindergarten, have the same legal protection as the articles of Nobel laureates in astrophysics published in Reviews of Modern Physics.I propose to start exploring this issue on the basis of the norms of Russian legislation on intellectual property, as well as the norms of international law in force in our country.Since May 27, 1973, the USSR (and the Russian Federation as the legal successor) is a party to the 1952 World (Geneva) Convention on Copyright, and from March 13, 1995, the Berne Convention for the Protection of Literary and Artistic Works of 1886 (hereinafter the Berne Convention).These international treaties are an integral part of the legal system of the Russian Federation.Article 1 (1) of the Berne Convention provides that the term “literary and artistic works” covers any production in the field of literature, science and art, regardless of the method and form of its expression.Moreover, in accordance with Article 5 (2) of the Berne Convention, in addition to the provisions established by it, the scope of protection, as well as the means of protection presented to the author to protect his rights, are regulated exclusively by the legislation of the country in which protection is sought.In accordance with paragraph 1 of Article 1259 of the Civil Code of the Russian Federation, the objects of copyright are works of science, literature and art, regardless of the dignity and purpose of the work, as well as on the method of expression, including audiovisual works, works of painting , sculptures, graphics, design, graphic stories, comics and other works of art.According to the clarifications of the highest court, set out in paragraph 80 of the decision of the Plenum of the Supreme Court of the Russian Federation of April 23, 2019 No. 10 “On the application of part four of the Civil Code of the Russian Federation”, the list of copyright objects contained in paragraph 1 of Article 1259 of the Civil Code of the Russian Federation is not exhaustive. When resolving the issue of attributing a specific result of intellectual activity to copyright objects, it should be borne in mind that, according to the meaning of Articles 1228, 1257 and 1259 of the Civil Code of the Russian Federation, only the result created by creative work is such an interaction. It should be borne in mind that, unless proven otherwise, the results of intellectual activity are assumed to be created by creative work. The lack of novelty, uniqueness and (or) originality of the result of intellectual activity itself cannot indicate that such a result was not created by creative work and, therefore, is not a copyright object.At the same time, paragraph 5 of Article 1259 of the Civil Code of the Russian Federation contains a special clarification that with the help of copyright ideas, facts and other similar objects (ideas, concepts, principles, methods, processes, systems, solutions to technical, organizational or other tasks, discoveries, facts, programming languages) regardless of the form of their expression.This norm is based on the fact that copyright cannot prevent the use of any technical or organizational solutions for the protection of which other intellectual property institutions can be applied, for example, patent law, provisions on the protection of production secrets (know-how), etc.From the analysis of the above legal norms, it follows that the form of expression of the content (description) is protected by copyright, at the same time the construction model itself, the concept and the organizational decision are not protected by copyright.In addition, according to paragraph 6 of Article 1259 of the Civil Code of the Russian Federation non-copyright objects are:1) official documents of state bodies and local governments of municipalities, including laws, other regulations, court decisions, other materials of a legislative, administrative and judicial nature, official documents of international organizations, as well as their official translations;2) state symbols and signs (flags, emblems, orders, banknotes and the like), as well as symbols and signs of municipalities;3) works of folk art (folklore) that do not have specific authors;4) messages about events and facts that are purely informational (news of the day, television programs, vehicle schedules, etc.).Thus, in order to answer the question whether the text of the contract is the object of copyright or not, it is first necessary to analyze whether this object belongs to the exceptions contained in paragraphs 5 and 6 of Article 1259 of the Civil Code of the Russian Federation.After analyzing these rules of law, I believe that the contract does not apply to any of the above objects that are not subject to the legal protection of copyright.At the same time, even if the agreement does not apply to objects that are not the objects of copyright, then it is not yet possible to draw an unambiguous conclusion that it is such an object, since in order to be recognized as an object of copyright, it must be:1) an independent result of the creative work of the author,2) expressed in an objective form.If we are talking about a contract made in simple written form, then, of course, it is expressed in an objective form.But, analyzing the question of whether the contract is the result of creative work, the answer will not be so clear. If the author of the contract was limited to quoting the rules of law, then such a contract can hardly be attributed to the object of copyright.However, if we are not talking about a standard contract for the supply or provision of services, but, for example, a commercial concession agreement, which by its legal nature is a comprehensive agreement designed to transfer business experience, skills and knowledge in a specific area of ​​commercial activity with the provision of the possibility of using means of individualization, objects of copyright, the know-how of their copyright holder, then in this case the contract can indeed be a literary work describing the conditions and features of the legal relations of the contracting parties.Such a document, in my opinion, will certainly be subject to copyright, since the drafting of such a contract will definitely require not only knowledge in the field of law, but also a creative contribution to its creation.At the same time, which is typical, in Russian judicial practice I did not find a single case where the subject of the dispute would be the text of the contract, which was used without the permission of the copyright holder. This is probably due to the fact that in 90% of cases unique contracts are simply not needed by the parties for whom this contract was drawn up, and they perfectly use universal forms, which are available in huge numbers on the Internet, and it is no longer possible to establish authorship of these documents.The second criterion which in my opinion does not lead to the emergence of judicial practice in which the contract would be the subject of a dispute as a copyright object, is related to the fact that the preparation of an exclusive contract is ordered by a lawyer, who, having prepared the text of the contract for a fee, transmits it to the customer. So, the original author (copyright holder) disposes his right (alienates it or grants the right of use to the customer).Further, the customer uses it in relations with his counterparties legally and, as a rule, the text of such an agreement does not become public, as the parties agree to maintain confidentiality with respect to the terms of the agreement, and therefore third parties do not have free access to this work and cannot use it.In this regard, in my opinion, there are no examples of judicial practice in disputes with violation of rights to this object. However, it would be extremely interesting to know the position of the courts whether they attribute the contract to objects of copyright.And what do you think, is a contract a copyright object?

Head of Department