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Author
Danil Lugovoy

Lawyer

22 March 2022

Means of proving authorship in a lawsuit

Current Russian legislation does not require state registration or any other formalities for the emergence, exercise, and protection of copyright. The legal doctrine traditionally distinguishes the creative nature of creating a work and the expression of the work in objective form as conditions for its protectability (i.e., the circumstances under which the current legislation grants legal work protection).


At the same time, the procedure for voluntary state registration is provided for such objects of copyright as a computer program and a database.


At the international level, this idea has been enshrined since 1908 in Article 5 of the Berne Convention for the Protection of Literary and Artistic Works, signed in 1886: “the use of copyright and their exercise” is not connected with the fulfillment of any formalities; such use and exercise do not depend on the existence of protection in the country of origin of the work ”, and is reflected in domestic legislation.


Thus, in accordance with Article 1257 of the Russian Federation Civil Code (hereinafter referred to as the Civil Code of the Russian Federation), “The citizen whose creative work it was created is recognized as the author of a work of science, literature or art. The person indicated as the author on the original or copy of the work, or otherwise in accordance with paragraph 1 of Article 1300 of the Russian Federation Civil Code, is considered its author unless otherwise proven.


According to paragraph 4 of Article 1259 of the Russian Federation Civil Code, “For the emergence, exercise and protection of copyright, registration of a work or compliance with any other formalities are not required. However, concerning computer programs and databases, registration is possible and carried out at the copyright holder's request in accordance with the rules of Article 1262 of the Russian Federation Civil Code.


The above legal approach creates difficulties when it is necessary to prove one's authorship by protecting copyright in court, especially in authorship disputes. However, this approach is primarily due to the need to ensure a balance of private interest and public interest - because the number of copyright objects created daily is many times greater than the number of other intellectual property objects, establishing the obligation to register them will create significant difficulties for the authors of such objects.


As pointed out by the Supreme Court in paragraphs 109-110 of the Decree of the Plenum dated April 23, 2019, N 10 "On the Application of Part Four of the Russian Federation Civil Code” (hereinafter referred to as Resolution No. 10), “ When considering a case on copyright protection by the court, one should proceed from the fact that, until proven otherwise, the author of a work is considered to be the person indicated as such on the original or copy of the work or otherwise in accordance with paragraph 1 of Article 1300 of the Russian Federation Civil Code (Article 1257 of the Russian Federation Civil Code), in the Register of Computer Programs or in the Register of Databases ( paragraph 6 of Article 1262 of the Russian Federation Civil Code). The need to study other evidence may arise if the authorship of a person to work is disputed by presenting relevant evidence.

At the same time, there is no exhaustive list of evidence of authorship.


Thus, when applying to the court for the protection of their rights, a copy of the work, on which the author's name is indicated, will be sufficient to prove the authorship of the work. In the event that opponents properly challenge a person's authorship, a more compelling range of evidence may be required to prove authorship.


Unfortunately, appropriation of someone else's creative work is a common problem. The imprudent behavior of the authors may lead to a situation where a third party not only assigns authorship to work but also begins to monetize it without the consent of the real author. Meanwhile, the current legal approach does not mean that copyright cannot be enforced.


To provide the right holder with a means of notifying third parties about the copyright to work belonging to him, the legislator has provided for such a method as the use of a legal protection mark. According to Article 1271 of the Russian Federation Civil Code, “To notify of the exclusive right to a work belonging to him, the right holder has the right to use the copyright protection sign, which is placed on each copy of the work and consists of the following elements:

  • Latin letter "C" in a circle;
  • the name or designation of the copyright holder;
  • year of first publication of the work.


Traditionally, such a designation looks like this: "Ivan Ivanov © 2022". In addition, it is also customary in business practice to indicate the period in which the copyright holder has exclusive rights to a work or the year of their acquisition - this is necessary in order not to mislead third parties about the current copyright holder in a given period, given that exclusive copyrights may be transferred.


As for the ways of fixing copyrights that are not related to computer programs and databases, as judicial practice shows, one of the most effective ways to fix copyrights is the deposit of a work. This method is consistent with the presumption of authorship, expressed in Article 1257 of the Russian Federation Civil Code, and is actively used in courts when proving authorship of a work. The most common way of depositing is to apply to a collective rights management organization (hereinafter referred to as the CMO), acting based on Articles 1242-1244 of the Russian Federation Civil Code, with a statement on the deposit of the work.


When applying to such an organization, the applicant submits the original material carrier with the work (for example, for a literary work, this may be the work itself on A4 paper), indicating the author and the date of creation of the work, and other documents provided for by the rules of a certain CMO. In addition, for the implementation of the deposit procedure, the applicant, as a rule, is subject to payment of a sum of money following the tariffs of the CMO.


Upon completion of the registration of the work, as a rule, one copy of the work remains in the CMO archive, and the second copy, at the request of the author, can be provided to him with the seal of the OKUP. In addition, the author is issued a certificate indicating the date of his application for a deposit, the title of the work, as well as his surname, name, and patronymic (if any). The certificate is also signed by the head of OKUPa, a seal is affixed.


However, it should be borne in mind that the deposit of work, although consistent with the presumption of authorship, expressed in Article 1257 of the Russian Federation Civil Code, is still not proof of authorship. The deposit is proof that a certain person identified himself as the author on a certain date.


This position was reflected in the Ruling of the Supreme Court of the Russian Federation (hereinafter referred to as the Supreme Court), dated September 17, 2020, in case No. 305-ES20-8198, which stated the following: “The fact of the deposit by Chernus G.V. The appearance of toys as works reflected in the album of prefabricated wooden products confirms only the existence of such objects of the copyright at the time of deposit, but does not in itself confirm the right of authorship of Chernus G.V. to these objects.

Copyright in work arises by creating an object that meets the conditions of protectability: being the result of the author's creative work and expressed in an objective form.

With this in mind, only evidence confirming the creation of a work by a specific person (for example, testimonies, publications, drafts, evidence based on the establishment of the author's creative style, etc.) can establish the authorship of a particular person.

The deposit of work is a voluntary procedure not provided for by law, with which the law does not associate the occurrence of any consequences. Depositing only confirms the existence of a copy of a specific work at a certain point.


Because of the preceding, the Supreme Court quashed the final judgments of the three lower instances and remitted the case for a new trial to the Moscow Arbitration Court (the court of the first instance in this case).


In essence, a deposited work is the exact copy of the work with the name of the person who calls himself the author. Still, with one difference - the deposit date is confirmed by an independent person, i.e., OKUP, which gives such evidence additional weight.


As for other means of proving authorship, screenshots can be highlighted among them. In accordance with paragraph 2 of clause 55 of Decree No. 10, “ Admissible evidence is, among other things, printouts of materials posted on the information and telecommunications network (screenshot) made and certified by the persons participating in the case, indicating the address of the Internet page from which the printout, as well as the exact time of its receipt. Such printouts are subject to evaluation by the court when considering the case on an equal basis with other evidence (Article 67 of the Russian Federation Civil Code Procedure, Article 71 of the Russian Federation Arbitration Procedure Code ).


For example, authorship can be confirmed by screenshots of a web page where the author himself posted the work. At the same time, for such screenshots to confirm the above facts, such Internet pages must indicate the name of the author and the date of publication of the work.


For example, authors of audiovisual works (hereinafter referred to as WUAs) often use screenshots from the YouTube streaming service as proof of authorship - in such a screenshot, in the description of the video, the name of the author may be indicated. The date of publication of the WUA is automatically shown by the service without third parties' participation, which gives such evidence an appropriate degree of certainty. In the case of WUA or other media content (for example, musical works), video recording of the monitor screen can also be used (both independent and obtained by inspecting the site by a notary within the framework of paragraph 6 of clause 55 of Resolution No. 10).


In order to give additional weight to the evidence mentioned above obtained independently, the persons participating in the case may file a petition for inspecting the website directly at the court session. The Supreme Court pointed out this possibility in paragraph 7 of clause 55 of Decree No. 10: 78 and clause 3 of part 1 of article 135 of the Russian Federation Arbitration Procedure Code, in the manner prescribed by these articles, the examination of evidence and their examination on the spot (in particular, to view the information posted on a certain resource of the information and telecommunications network in real-time) is entitled.


As other evidence in judicial practice, there are others:

  1. Evidence of the creation process (which can be correspondence, copyright contracts, provision of an unprocessed photograph along with a camera in a dispute about the authorship of a photograph, etc.);
  2. A common piece of evidence is also a copy of the work sent by the author to himself in a sealed envelope by registered mail. The court also accepts this evidence. However, if the opponents have more probative evidence (for example, a deposited copy of the work), the court may decide not in your favor;
  3. Witness testimony can also serve as evidence of the creation of a work by a particular person on a certain date (a certain period). However, it should be noted that the court will evaluate such evidence in conjunction with other evidence, including those listed above.


Summarizing the foregoing, the court evaluates all of the above evidence in their totality, depending on what was specifically presented and the degree of reliability of such evidence for the court. With an equal degree of certainty, the court decides in favor of the person who provided as evidence of the author information about the earlier indication of the authorship of such a person. Under such circumstances, in my opinion, the deposit is one of the most reliable pieces of evidence (not counting the state registration of computer programs and databases), and it is recommended to go through this procedure as soon as possible after giving the work an objective form.


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