Inheritance of Intellectual Property: Instructions for Successors and Registration Procedure

When an author, inventor, or just a copyright holder passes away, his intellectual property does not disappear. Books, music, patents, program code, trademarks, or trade secrets continue to generate income, but now the heirs face a difficult task - not only to accept the property, but also to legally formalize the transfer of rights. Often, heirs lose assets or income simply because they did not understand the procedure in time.

This article is a practical guide for those who are faced with the need to adopt intellectual property rights. We will analyze what exactly is inherited, what steps need to be taken, and where mistakes are most often made.

What is actually inherited?

Many people mistakenly believe that the "authorship" itself is inherited. This is not true. According to Article 1112 of the Civil Code of the Russian Federation, the inheritance estate includes property, property rights, and obligations. In the case of intellectual property, we are talking about an exclusive right - the ability to use an object, allow or prohibit its use by other persons, issue licenses, and alienate the right.

Personal non-property rights (the right of authorship, the right to a name) are not inherited. You will not become an "author" instead of the deceased. However, you, as an heir, can protect the honor and dignity of the author after his death, if he has not appointed another person for this (Article 1267 of the Civil Code of the Russian Federation).

What exactly can be included in the inheritance:

• Exclusive rights to works (literature, music, photo, audiovisual works), computer programs and databases.
• Patent rights for inventions, utility models and industrial designs.
• Trademark and service mark rights.
• Eligibility for a patent if the application is still pending.
• Exclusive right to a trade secret (know-how), as long as confidentiality is maintained.
• The right to demand accrued but unpaid remuneration under license agreements.
• Material media: manuscripts, paintings, servers. But it is important to understand here: the right to a manuscript and the right to a work are two different rights. Having bought a painting, you do not automatically receive the right to replicate it (Article 1227 of the Civil Code of the Russian Federation).

The term of validity of the exclusive right to the work is the entire life of the author and 70 years after his death (counting from January 1 of the next year). For co-authors, the period is counted after the death of the last of them.

Who owned the right?

Before going to a notary, it is necessary to clearly establish who owned the exclusive right as of the date of death. The author and the copyright holder are not always the same person. The author could transfer the rights to a publishing house, producer, or customer. Works for hire often belong to the employer, not the employee. A patent or trademark could be registered in the name of a company.

Here are four questions to answer for each object:

1. What is this object and how is it individualized?
2. On what basis did the testator have the right?
3. Has the right been transferred to another person?
4. Are there any valid licenses, liens, or legal disputes?

Collect all the documents: patents, certificates, extracts from registers, alienation and license agreements, acts of acceptance and transfer, employment contracts. For unregistered works, source files and evidence of publication are important.

Step-by-step instructions for the heir

Step 1. Accept the inheritance on time

The general period is 6 months from the date of opening the inheritance. There are no special deadlines for intellectual rights. The safest way is to submit an application for acceptance of the inheritance or for the issuance of a certificate to a notary. If the rights are discovered after the issuance of the main certificate, you can apply for an additional one. Missing the deadline will require the consent of other heirs or the court.

Step 2. Inform the notary about intellectual assets

A notary cannot always see an unregistered work or a foreign object on his own. Your task is to provide a list of rights and supporting documents. For registered objects, indicate the type, name, number of the patent or certificate, and priority date.

The wording "all copyrights" can create problems during registration. The more accurately the object is described, the easier it is to confirm the transfer of rights.

Step 3. Save the asset until the registration is completed

Until the inheritance case is closed, the asset may require management: it is necessary to respond to licensees, receive payments, renew the trademark, and pay patent fees. If the rights require management, the notary can establish trust management (Article 1173 of the Civil Code of the Russian Federation).

For know-how, the primary task is to restrict access to information, change passwords, and check confidentiality agreements. If a secret is disclosed, the exclusive right is terminated for all copyright holders.

Step 4. Get a certificate of inheritance

The certificate must make it possible to determine a specific exclusive right. If there are several heirs, the right usually belongs to them jointly. It is not divided into separate exclusive rights according to arithmetic shares. The procedure for use and disposal is determined by the agreement.

By default, the joint right must be disposed of jointly. Everyone can defend the right independently. Income is distributed in accordance with the inheritance shares. It is better to fix these rules in writing: who negotiates, signs licenses, controls violations, and bears the costs.

Step 5. Register the transition if required

State registration is required when the object or right itself is subject to registration. The basis is a certificate of inheritance. For objects maintained by Rospatent, the application is submitted in the current form (electronically or on paper). The basis document, power of attorney, and translations of documents are attached, and the fee is paid.

After verification, Rospatent enters the new right holder in the register. If the registration requirement is not met, the transfer of rights is considered invalid (Clause 6 of Article 1232 of the Civil Code of the Russian Federation). It is risky to postpone making an entry.

When is registration required?

• Works (literature, music, photos): Registration is usually not required. Copyright arises without registration.
• Computer programs and databases: If they were previously registered with Rospatent, registration of the transition is mandatory. If not, the transition takes place without registration, but you can register the program voluntarily.
• Inventions, utility models, industrial designs: Registration is mandatory (Rospatent).
• Trademarks: Registration is mandatory (Rospatent).
• Selection achievements: Registration according to special rules.

Special Cases: Business Names, Domains, and Accounts

A firm name has a special regime. It is associated with a legal entity and is not inherited separately by a citizen. The exclusive right to a commercial designation can be transferred only as part of an enterprise.

A domain name, social network account, or channel name are not included in the list of intellectual property objects (Article 1225 of the Civil Code of the Russian Federation). The rights to them depend on the agreement with the registrar or the rules of the platform. However, the content, trademark, and program code associated with the domain can be independent inheritable objects.

What to check before filing with Rospatent

1. Before registering the transfer, check the registry status of each object. The patent could have terminated due to non-payment of the fee, and the trademark could have expired. The law allows for restoration or renewal, but the terms and conditions vary.
2. The documents must match the full name of the testator, information about the heirs, and the numbers of the objects. It is better to eliminate discrepancies due to a change of surname or a technical error in advance. If there are several heirs, the application must correctly reflect the joint ownership or the result of the division of the inheritance.
3. Check your existing licenses and collaterals. The transfer of exclusive rights to a new rights holder does not in itself change or terminate the license agreement entered into by the previous rights holder. You receive the asset together with the current contractual restrictions and the right to payments provided for by them.
4. Rospatent evaluates documents within the registration procedure. An entry in the register does not replace the verification of the validity of the will and the composition of the heirs. In case of a dispute, the issue may require judicial resolution.

Common mistakes of heirs

Over the years of practice, I often see the same mistakes. To avoid them, pay attention to the following points:

• Illusion of ownership: The heir receives a manuscript or computer and thinks that he has received the exclusive right as well. This is not true.
• Appropriation of authorship: The heir begins to call himself the author. Only the property right is inherited.
• Silence: Do not inform the notary about unregistered objects and contracts that are not in open registers.
• General certificate: Get a certificate without patent and trademark numbers, and then face the request of the registration authority.
• Missed deadlines: Failure to pay patent fees, missing trademark renewal or application response.
• Order before registration: Start using the right before making an entry in the register.
• Ignoring encumbrances: Forget about licenses, pledges, and joint rights holders.
• Disclosure of know-how: Transfer archives without ensuring confidentiality and deprive the object of legal protection.

A checklist for the heir

1. Contact a notary within a 6-month period.
2. Make a complete list of objects, contracts, and monetary claims.
3. Check whether the exclusive right belonged to the testator on the date of death.
4. Record registration numbers, terms of protection, licenses, liens, and disputes.
5. If necessary, ask the notary to organize trust management.
6. Get a certificate with an accurate description of each right.
7. Agree on the procedure between several heirs.
8. Submit an application for registration of the transition for registered objects.
9. After making an entry, notify licensees, collective management organizations and counterparties.
10. Establish a calendar of renewals, fees and violation control.

Inheritance of intellectual property rights is not just bureaucracy. It is an opportunity to preserve the heritage and the income that it brings. But without an accurate inventory of objects and a timely entry in the state register, you risk losing assets. If you are not confident in your abilities or the situation seems confusing, it is better to contact a patent attorney. We will help you conduct an audit, correctly describe the objects for a notary and register with Rospatent without errors.