Free use of objects of related rights and works

Methods of free use

The Civil Code of the Russian Federation in its fourth part, dedicated to rights on the results of intellectual activity and means of individualization equated to them, explicitly enshrines the right to free use of objects of copyright and related rights.

According to Article 1259 of the Civil Code of the Russian Federation, objects of copyright include works of science, literature, and art, regardless of the merits and purpose of the work, as well as the method of its expression (literary, musical, audiovisual works, etc.), and computer programs. Objects of related rights include performances, phonograms, broadcasting or cable transmission messages, databases (in terms of their protection from unauthorized use of content), and the rights of publishers of works that have passed into the public domain (Article 1304 of the Civil Code of the Russian Federation).

It should be noted that unlike the open list of objects of copyright, the list of objects of related rights is closed.

Free use of works and objects of related rights means such use that does not require obtaining the author's consent and payment of remuneration but with obligatory indication of authorship.

The list of types of free use is closed, meaning that only the use explicitly named in the Civil Code will be recognized as free, namely in Articles 1273, 1274, 1277, 1278, and 1279 of the Civil Code of the Russian Federation. These articles specify various ways of free use of objects of copyright and related rights, but the main purposes of such use can be highlighted as:

• Personal;
• Informational, scientific, cultural, educational;
• Law enforcement.

Personal goals and reproduction

Personal use of works, according to the provisions of Article 1273 of the Civil Code of the Russian Federation, means the use of works by a citizen "when necessary and for personal purposes." The Supreme Court of the Russian Federation in Plenary Resolution No. 10 dated April 23, 2019 noted that "personal purposes" mean the use of a work not for commercial purposes, to meet one's own needs or the needs of the "ordinary family circle." The "ordinary family circle" means the immediate environment of a person, determined by the court in each specific case, considering the circumstances of the case.

One type of free use of works for personal purposes is reproduction, i.e., the creation of one or more copies of a work or part of it in any material form (Article 1270 of the Civil Code of the Russian Federation). However, the provisions of the previously mentioned Article 1273 of the Civil Code of the Russian Federation specify a direct prohibition on the reproduction of architectural structures, databases, computer programs, books, and musical scores, audiovisual works during public performance or using professional equipment. This provision must also be considered for the lawful use of objects of copyright and related rights.

Informational and scientific purposes of use

Article 1274 of the Civil Code of the Russian Federation is dedicated to the free use of works for informational, scientific, cultural, and educational purposes. It defines the main types of such use:

• Quotation in the original and translation;
• Illustration;
• Reproduction in a periodical publication and subsequent distribution of articles on current economic, political, social, and religious issues, as well as publicly delivered political speeches, appeals, reports, and similar works;
• Reproduction and distribution in reviews of current events of works recorded during such events;
• Public live performance of works in educational, medical, social organizations;
• Recording on an electronic medium and making available to the public abstracts of dissertations;
• Creation and distribution of copies of works for the blind and hearing-impaired, as well as sign language translation of works;
• Creation of parodies and caricatures.

Special mention should be made of use for law enforcement purposes, namely the reproduction of a work for the conduct of administrative offense proceedings, for the conduct of inquiry, preliminary investigation, or court proceedings to the extent justified by this purpose (Article 1278 of the Civil Code of the Russian Federation).

Quotation as a type of free use of a work

It is necessary to dwell in more detail on quotation as a type of free use of a work. The fact is that Article 1274 of the Civil Code of the Russian Federation does not explicitly define either the concept of quotation or the permissible volume of such quotation. Moreover, until recently, it was considered that only text could be quoted.

The approach to understanding quotation was changed in 2017 when the Intellectual Property Court in case No. A40-142309/2015 established that any works, including photographs, can be quoted. This approach was due to the fact that, by its meaning, quotation is the use of a work or fragment as an inclusion in another object of copyright. In accordance with this understanding of quotation, the Court indicated that "Since a photograph can be included in another work, including a text, becoming an integral part of it, such inclusion can be recognized as quotation." The Supreme Court put an end to this controversial issue in paragraph 98 of PRSC No. 10, indicating that "the possibility of quoting any work is allowed."

In addition to the objects subject to quotation, questions also arise regarding the volume of quotation and the ways to determine it. Article 1274 of the Civil Code of the Russian Federation indicates that the volume should be justified by the purpose of the quotation. Due to the fact that a more detailed definition is not provided in the law, the determination of the volume of quotation justifying the purposes of such quotation is established by the court.

Thus, in case No. A40-69432/2015, Prospekt Publishing House LLC filed a claim for compensation from Moscow Technological Institute for violation of exclusive rights to a work. According to the plaintiff, the defendant violated its exclusive rights as the part of the work placed on the defendant's website amounted to 511 authorial sheets, which in relation to the volume of the entire work is 146%.

The courts of the first and appellate instances concluded that the quotation was lawful as the rules of attribution and conformity to the purposes of quotation were observed. However, the cassation court, represented by the Intellectual Property Court, did not agree with the conclusions of the lower courts, indicating that quotation should not dominate the volume of the author's text and should complement the author's own text rather than replace it. In this case, it was established that the defendant quoted more than 80 pages of the textbook, which can be regarded not as quotation but as copying the author's text. Nevertheless, judicial practice is known for an example with an opposite approach where the courts of the first, appellate, and cassation instances recognized the quotation in the volume of 13% as lawful (case No. A40-48760/2016).

Thus, courts determine the lawfulness of free use of a work and its volume based on the specific circumstances of the case, which once again indicates the absence of a unified approach in the law and judicial practice to determining the concept and volume of quotation. However, it should not be forgotten that the purpose is not the only condition for lawful use since there are often cases when the court refuses to recognize the lawfulness of free use if other conditions, such as attribution, are not met.

Therefore, before using a work without paying the author remuneration and obtaining their consent, it is necessary to ensure that all conditions of free use are met and that the specific use relates to the type of free use to avoid violating the author's exclusive rights and the consequences of such a violation.