Works of art as objects of design in intellectual property law

The concept of "work of art" is not disclosed in Russian legislation and doctrines, however, we can try to highlight its main features to reveal the essence in order to determine the further way of interacting with the object.

The legislator places a "work of art" in the list of objects of copyright, given in paragraph 1 of Art. 1259 of the Civil Code of the Russian Federation - objects of copyright are works of science, literature and art, regardless of the merits and purpose of the work, as well as the way it is expressed: works of painting, sculpture, graphics, design, graphic stories, comics and other works of fine art. Design works are included in the list of objects of copyright. In patent law, the concept of "work of art" does not occur at all, however, the product can form the basis of an industrial design, which will be discussed later.

To determine the protection mechanisms, it is necessary to determine the area of law to which the selected object will relate. Without a clear understanding of the definition, it will be impossible to choose a further method of protection.

In our opinion, in order to define the concept of "work of art", one should first of all interpret the meaning of the word "work". A work in copyright is understood as such a manifestation of the intellect of a person, where a thought is developed, clothed in an accessible form for perception, which has sufficient originality and can be reproduced, communicated to the public and processed. The creative product must be original, new, not known from the state of the art. (The concept of "prior art" is used when considering a design object as a patent for an industrial design). As a rule, the product of creativity is unique, since each author has his own style, developed on the basis of skills, practice and his own worldview. From this definition, the following features of the work can be distinguished:

• has a personal, original nature - the work is a product of the mental activity of a particular person, that is, exclusively and uniquely - two or more people will not be able to create exactly the same work;
• it is a product of processing the non-material – thought – into an objective form that can be perceived by other people;
• reproducible and recyclable.

Based on the definition and features of the concept of a work, it should be noted that ideas, concepts, principles, methods of solving problems, methods, processes, systems, methods, solving technical, organizational or other problems, discoveries, facts, programming languages, geological information about the subsoil are not are objects of copyright and patent law and are not subject to protection - clause 5 of article 1259 of the Civil Code of the Russian Federation. Only the embodiment of ideas is protected.

Art is understood as an artistic reflection of reality. It can be expressed in pictorial form, sound (music), in verbal form (fiction), as well as through the synthesis of certain types of art (theater, cinema).

Combining together the definitions of "art" and "work", we can interpret the concept of "work of art" as follows: it is an original, unique artistic reflection of reality, expressed in an accessible form for perception and reproduction. The most important properties of a work of art, which distinguish it from the results of mass production, are aesthetic, constructive and artistic properties. A work of art has a non-utilitarian character and is capable of evoking an emotional response.

In order for us to consider the areas of legal regulation of works of art, we also need to understand what design is.

Based on the definition of the word " design " given in the Oxford Dictionary, design is the activity of creating, designing, planning something. In other words, this is a creative activity to create an object or transform an already created object into an object that is exceptional in its characteristics. As a rule, the design object performs aesthetic and technical functions. For example, a designer dress performs both functions, because it is unique and satisfies the need for aesthetic pleasure, as well as practical - it can be used in everyday life, satisfying a person's need for clothing. At the same time, a dress embroidered with precious stones, which has many complex additional decorative elements, is unlikely to be practical and, most likely, will be displayed as a work of art.

Considering the technical side of the design object, it should be noted that the created object can form the basis of an industrial design, which in the future will be used in mass production.

It is important to note that design objects can be such works of art as works of decorative and applied art - the results of creative activity that perform utilitarian and decorative functions, as well as fashion design objects - fashionable clothes, accessories, jewelry.

To single out works of art from design objects, it is necessary to correlate the features and find common and unifying points. Design is divided into areas - environmental design, industrial design and graphic design, which have a certain functionality: social, functional-technical, ergonomic, aesthetic. Based on this, we can conclude that theatrical performances, cinema, photography, fiction, as works of art, cannot be objects of design due to their failure to fall into the division of design by direction. However, the design of a literary work, the exterior of the theater, furniture - may well be works of art, which will be the objects of design.

The regulation of relations, the subject of which is the object of design, is handled by copyright and patent law. Earlier we touched upon the area of copyright, defining the concept of "work". As mentioned earlier, the legislator does not define the concept of "work of art", he only lists the groups of objects to which it may relate. In patent law, design refers directly to industrial designs: objects of patent rights are the results of intellectual activity in the field of design that meet the requirements for industrial designs established by the Civil Code - Part 1 of Art. 1349 of the Civil Code of the Russian Federation. We consider it necessary to note that the design of a product can form the basis of a trademark or service mark that serves to individualize goods, works or services of legal entities or individual entrepreneurs, however, the legal regulation of means of individualization is different from the regulation of objects of copyright and related rights.

The creation of objects of copyright gives rise to the emergence of legal relations at the time of their creation. Exclusive rights to works are recognized for the authors - individuals whose creative work created this work. The author can be a person of any age. It follows from the definition that a prerequisite for recognizing a citizen as an author is the presence of his creative work. Creative work is mental (intellectual) work, mental activity, the result of which is the creation of a work, that is, the consolidation of the stated thought in an objective form. Objective form is recognized not only as a written form, sound recording, video recording, drawing or photograph, but even an oral form - the pronunciation of a work in the presence of the public. The performance of a work on a musical instrument will also be considered its expression in an objective form. It can either be associated or not associated with a material carrier. Moreover, the absence of such signs as novelty, originality and uniqueness does not indicate that the work was not created by creative work. The legislator provides for the possibility of co-authorship when creating a work. It is worth paying attention to Art. 1228 of the Civil Code, which says that in order to be considered an author, a person is obliged to make a personal creative contribution to the creation of the result of intellectual activity. Also, persons who provided only technical, consulting, organizational or material assistance will not be considered authors. In accordance with the provisions of paragraph 1 of Art. 1258 of the Civil Code, co-authors are citizens who have created a work by joint creative work, regardless of whether such a work forms an inseparable whole or consists of parts, each of which has an independent value. Based on the provisions of these articles, we can single out the most important unifying moment - the creative contribution. In other words, the legislator protects any original creative result.

After the creation of a work of art by the author, he is endowed with a set of rights that determine the protection of his work in the future. These rights can be divided into two groups:

• exceptional;
• personal non-property.

The theory of exclusive rights is that the primary authority on the object of creative activity belongs to one person and the law that protects this right prohibits the misuse of intellectual property rights by others, prosecutes violators and provides for sanctions against them. Analyzing the provisions of the following articles: Part 4 of Art. 129, Art. 1229, art. 1233, Art. 1294 of the Civil Code, it should be noted that the property nature of exclusive rights is the right to use, dispose and protect the object.

The non-property right includes the right of authorship, the right of the author to a name, the right to inviolability of the work, the right to publish the work. In addition, the author has other rights, including the right to remuneration for an employee's work, the right to recall, the right to follow, the right to access works of fine art. These rights are perpetual and inalienable and maintain the link between the author and the work. Personal non-property copyrights are characterized by inalienability and non-transferability - part 1 of Art. 150 and part 1 of Art. 1265 of the Civil Code.

Works subject to copyright must be expressed in an objective manner. Often there is a problem in the relationship between the right to a work and the right to a material medium. It arises from the fact that the work is intangible. The Civil Code determined that intellectual rights do not depend on the ownership of the material medium in which the object is expressed. It should also be noted that the transfer of ownership of a thing does not entail the transfer of ownership of an object - Part 1, Part 2 of Article 1227 of the Civil Code of the Russian Federation.

Speaking about protection, it should be noted that objects of copyright are protected in connection with their form, that is, from the moment the results of creativity are created. In order to establish an exclusive right, it is necessary to individualize an object, to separate it from adjacent objects. Difficulties do not arise if the object is unique, has a number of distinctive features characteristic only of it, is inimitable. In this case, copyright arises from the moment the object is created. In the case when a design object is registered as an industrial design, the legislator provides for a certain number of provisions to regulate legal relations. Regulation of legal relations is carried out on the basis of the provisions of Chapter 72 of the Civil Code of the Russian Federation. In accordance with paragraph 2 of Art. 1345 of the Civil Code of the Russian Federation, the author of an invention, utility model or industrial design has the exclusive right and the right of authorship. The protection of an exclusive right certified by a patent can be carried out only after the state registration of an invention, utility model or industrial design and the issuance of a patent - clause 1 of Article 1363 of the Civil Code of the Russian Federation.

Based on legal norms and practical experience of their application, it should be emphasized that works of art are a broad category that includes many results of intellectual activity, including results - design objects. Understanding the concept of "work of art" contributes to a more accurate analysis of design objects from the point of view of law. However, the lack of a legislative definition of the concept makes this process difficult. It is necessary to independently identify the signs of art and work, based on the analysis of different points of view. Only then the definition of a work of art among the general mass of design objects becomes real. We have highlighted the key difference between such works of art in the category of design objects - the material form of expression. The design object is tangible, and can be perceived not only visually, but also tactilely, while such works of art as musical works do not correspond to the general features of design objects and, therefore, cannot be considered as such.