14 December 2018

A free use of a work for scientific and educational purposes

According to the norms of the Russian legislation, the author of a work of science shall obtain theexclusive rights to such a result of intellectual activity from the moment of the creation and expression ofthe work in an objective form. The content of these rights is limited to the use and disposal of the subjectmatter by any way not contrary to the law. The exclusive rights of the author are of an absolute nature, theessence of which is that the right arises from a person, regardless of the will of third parties, and all therest must refrain from the actions capable of violating it. However, the legislation contains a number ofcases, where the works can be used without the right holder’s consent. One of them is the right to a freeuse of the work for scientific and educational purposes.The general provisionsAccording to Subparagraphs 1 and 2 of Paragraph 1 of Article 1274 of the Civil Code of the RussianFederation: “The following shall be allowed without the consent of the author or other right holder andwithout the payment of remuneration, but with an obligatory indication of the name of the author, whosework is used, and of the source of borrowing:1) quoting in the original and in translation for scientific, discussion, critical, information and educationalpurposes, for the purpose of disclosing the author's creative design of the legally promulgated workswithin the scope justified by the purpose of quoting, including the reproduction of excerpts fromnewspaper and magazine articles in the form of press reviews;2) using the legally promulgated works and excerpts from them as illustrations in publications, radio andtelevision broadcasts, sound and video recordings of an educational nature within the scope justified bythe set purpose.”The analysis of the above legal norm allows us drawing a number of conclusions:― The quoted subject matter must be legally promulgated.― There is no need to obtain the consent of the author or right holder, or to conclude an agreement, to usethe work in the above cases.― The remuneration for a free use for scientific and educational purposes shall not be paid.― It is permitted to use both the original and the translation of the work.― For the legal inclusion of a work or fragment, a number of conditions must be observed: to specify theauthor's name or pseudonym (if he performs under it), the work used; to make out the work or excerpt insuch a way that it will be clear, where the borrowed subject matter is.The ways of a free use of works for scientific and educational purposesSubparagraphs 1 and 2 of Paragraph 1 of Article 1274 of the Civil Code of the Russian Federationstipulate two ways of a free use of works without the author's consent for scientific and educationalpurposes: in the form of quoting and in the form of press reviews.Quoting means the use of the work or fragment as the inclusion in another subject matter of the copyright.Quoting must occur without distorting the borrowed element and it should be made out with correcttextual or audiovisual distinguishing. For example, distinguishing with quotation marks in case of literaryworks or the indication to the use of the subject matter in the credits of the audiovisual work.In the text of Subparagraphs 1 and 2 of Paragraph 1 of Article 1274 of the Civil Code of the RussianFederation, the legislator states that the press reviews in the form of the reproduction of the excerpts fromnewspaper and magazine articles shall be considered as a type of quoting. At the same time, this type is

still distinguished separately. This is due to the fact that this way of a free use can both lead to theemergence of a new work (with additions, the indication to the author's opinion, etc.), and it can be usedfor a simple reproduction of various excerpts of newspaper or magazine articles.The peculiarities of the use of the legal provisions of Subparagraphs 1 and 2 of Paragraph 1 ofArticle 1274 of the Civil Code of the Russian FederationThe above Article contains a number of terms and concepts that require clarification and specificity.Enumerating the cases of a free use of works without the right holder’s consent, the legislator indicates toa possibility of using for scientific and educational purposes. At a superficial review, these terms seem tobe synonymous. Therefore, it seems necessary to consider them in more detail. The scientific purposesshall be understood as the study and analysis of existing works (textbooks, monographs, scientificarticles, etc.) for the subsequent development of new knowledge about the subject matter or the researchsubject. The educational purposes shall be meant the study of subject matters of the copyright foreducational purposes. Thus, the qualitative difference of the use of works for scientific purposes from theuse for educational purposes is to obtain the new information, conclusions or knowledge about the subjectmatter of the research, which are not contained in the quoted sources.The determination of the volume, in which the work or its excerpt can be used freely, causes difficulty.Article 1274 of the Civil Code of the Russian Federation states that the volume should be justified by thepurpose of quoting. Due to the absence of a more detailed description of this concept, in the event ofdisputable situations, the determination of the permissible size of the quoted subject matter falls withinthe jurisdiction of the judicial authorities. When considering the cases related to the legality of a free useof works without the author’s consent, the court shall take into account the following circumstances:whether the quotations are used for the purposes specified in the Articles of the Civil Code of the RussianFederation; whether the author of the borrowed excerpt or work is indicated; what the volume of theindicated element is, in comparison with the work, in which it is used; as well as the practice of a free useof the quoted subject matter of the copyright.

Managing Partner / Patent Attorney of the Russian Federation / Eurasian Patent Attorney