The legal aspects of a multiplicity of right holders to one subject matter of the copyright

In our life, we often meet the cases when several people, who are united by one goal, one passion, create in the course of their activities certain subject matters of intellectual property to which, in accordance with Article 1259 of the Civil Code of the Russian Federation (hereinafter referred to as C.C.R.F.), the works of science, literature and art, regardless of the merits and purpose of the work being the subject matters of the copyright shall be referred.

Speaking about literary works, which are created in co-authorship, the Russian readers first think of the works of great satirists Ilya Ilf and Yevgeny Petrov, or the works of equally great science fiction writers Arkady and Boris Strugatsky.

The examples of co-authorship are also known in painting – Ivan Aivazovsky’s painting ”A. S. Pushkin's Farewell to the Sea,” painted by him in co-authorship with Ilya Repin, or one of the most famous works of Ivan Shishkin – “The Morning in a Pine Forest,” which the artist created in 1889 in co-authorship with his friend, artist Konstantin Savitsky, who painted the family of bears on Shishkin’s canvas.

The works of science in this list of the subject matters of the copyright have set a record for the number of the authors involved in their creation. For example, the article on physics, published on May 14, 2015 in the pages of journal Physical Review Letters, broke the world record for the number of the authors – there are as many as 5,154 persons.

For the latter example, the term “Hyperauthorship” applied by Blaise Cronin of Indiana University, Bloomington, has been used lately, which denotes a modern phenomenon in science (usually experimental one), which implies that the number of the authors of one scientific article reaches thousands, and the full list of the authors turns out to be comparable in size to a contextual part of the article (source: The Wikipedia Internet Encyclopedia).

The list of the examples could be continued for long enough, but the purpose of this article is not to enumerate the examples of co-authorship in the world science, literature or art, but to analyze the legal aspects that take place with the multiplicity of the right holders to one subject matters of the copyright.

So, in accordance with Paragraph 1 of Article 1258 of the C.C.R.F., the citizens who have created a work by joint creative labor shall be recognized to be co-authors regardless of whether such work forms an inseparable whole or consists of the parts each of which has independent significance.

It follows from this norm that the co-authorship regime means a multiplicity of right holders in relation to the same work. At the same time, the exclusive right is unified (unitary), without splitting into separate exclusive rights by the number of co-authors. The multiplicity of authors does not mean a corresponding increase in the number of exclusive rights, and each of the co-authors is not considered to have the exclusive right, which does not depend on other authors, that would belong only to this co-author.

The similar legal position was reflected in Resolution of the Intellectual Property Court of September 26, 2013 No. А39-3670/2012.

According to Article 1226 of the C.C.R.F., the intellectual rights, which include the exclusive right being a proprietary right, and, in the cases stipulated by the said Code, also personal non-proprietary rights and other rights (droit de suite, a right of access and others) shall be recognized as the rights to the results of intellectual activity and the means of individualization equated to them (the results of intellectual activity and the means of individualization).

As it follows from the content of Articles 128 and 129 of the C.C.R.F., the protected results of intellectual activity and the means of individualization (the intellectual property) equated to them shall be referred to the subject matters of the civil rights.

The subject matters of the civil rights may be freely alienated or transferred from one person to another under a universal succession procedure (inheritance, the reorganization of a legal entity) or in any other way, if they are not limited in the circulation.

The restrictions to circulability of the subject matters of the civil rights may be imposed by the law or in the manner prescribed by the law, in particular, the following may be stipulated: the kinds of the subject matters of the civil rights that may belong only to certain participants of the circulation or the ones that making transactions with which shall be allowed according to a special permit.

It is stipulated by Paragraph 3 of Article 1229 of the C.C.R.F. that in the case when the exclusive right to the result of intellectual activity or the means of individualization belongs to several persons jointly, each of the right holders may use such result or such means at his discretion, unless otherwise is stipulated by this Code or the agreement concluded between the right holders. The relationship of the persons who own the exclusive right jointly shall be determined by the agreement concluded between them. The disposal of the exclusive right to the result of intellectual activity or the means of individualization shall be exercised by the right holders jointly, unless otherwise is stipulated by this Code or the agreement concluded between the right holders.

According to the said norm, the disposal of the exclusive right belonging to two or more persons, shall be exercised by the right holders jointly, unless otherwise is stipulated by the law or the agreement concluded between them.

Based on the foregoing, it follows that the authors' proprietary rights are indivisible, therefore, it is impossible to take way one of the co-authors/co-right holders from settling an issue on concluding an agreement on the transfer of the exclusive rights to the work to a third party.

In this case, in accordance with Paragraph 2 of Article 1258 of the C.C.R.F., the work created in co-authorship shall be used by the co-authors jointly, unless otherwise is stipulated by the agreement concluded between them.

Thus, it follows from the above legal norms that the legislator has established some restrictions to circulability of the works created in co-authorship; such works should be used by the co-authors jointly and the disposal of the rights to the work should also be exercised by the co-authors jointly.

However, it should be noted that the part of the work, the use of which is possible independently of other parts, that is, the part having independent significance, can be used by its author at his discretion, unless otherwise is stipulated by the agreement concluded between the co-authors (the second Unnumbered Paragraph of Paragraph 2 of Article 1258 of the C.C.R.F.).

Thus, it follows from this norm that co-authorship can be separate or non-separate. It is assumed that in both cases it is necessary to have joint creative labour, but with the separate co-authorship, the parts are created that have their own significance, and with the non-separate co-authorship, the work forms an inseparable whole.

The most frequent example of separate co-authorship are the collective textbooks, the chapters of which are written by individual co-authors, they are clearly differentiated and can be used by their authors independently, while the textbook consisting of these chapters is a literary work.

The programme for an electronic computing machine, which is represented in an objective form by a set of the data and commands designated to ensure the operation of electronic computing machines and other computer devices in order to obtain a certain result, including the preparatory materials obtained in the course of the development of the programme for an electronic computing machine and the audiovisual images generated by it (Article 1261 of the C.C.R.F.) may be an example of a non-separate creative activity.

At the same time, both Paragraph 2 of Article 1258 of the C.C.R.F. and Paragraph 3 of Article 1229 of the C.C.R.F. stipulate the disposition principle of the legal relations arising between the co-authors, in terms of the wording “unless otherwise is stipulated by the agreement concluded between the co-authors.”

In the above norms, the legislator has not given direct instructions to the content of this agreement, what is consistent with the principle of freedom of agreements established by Article 421 of the C.C.R.F.

At the same time, it becomes definitely difficult both to dispose of the right and to use of the work created in co-authorship in the absence of an agreement between the co-authors on how to settle the procedure for the use and disposal of the rights to a jointly created subject matter, whether the right to dispose of the exclusive right to the jointly created subject matter can be transferred to one of the co-authors by the agreement.

For example, in the event of disagreements between the co-authors, the situation may arise in which one of them will prevent the other authors from using the work and disposing of the rights to it.

Meanwhile, the legislation stipulates a clause, from which it follows that in the case when the work forms an inseparable whole, none of the co-authors shall be entitled to prohibit the use of such work without sufficient grounds (Part 2 of Article 1258 of the C.C.R.F.).

In my opinion, it is important that none of the co-authors is entitled to prohibit the use of such work without sufficient grounds, since the absence of this norm would have allowed one of the co-authors to infringe groundlessly upon the rights of other authors.

However, the legislator, leaving the possibility of a prohibition if there are sufficient grounds, does not define the criteria of the grounds that are sufficient to prohibit the use of such work. In the judicial practice, a broader interpretation of this provision is also not available.

The norms of the civil law restricting the co-authors in their rights to use and dispose of the rights to a work establish a balance at which the risks of infringing upon the rights of one of the co-authors by another one are minimized.

At the same time, in the case if the actions of one of the co-authors lead to the violation of the rights of the others, for example, one of the co-authors of the programme for an electronic computing machine sells the copies of the programme in the absence of a permission of other co-authors, then, for the purposes of protection of the violated right the provisions of Paragraph 3 of Article 1258 of the C.C.R.F. may be applied, according to which the principles of Paragraph 3 of Article 1229 of the C.C.R.F. shall be accordingly applied to the relations of the co-authors connected with the distribution of the income gained from the use of the work and with the disposal of the exclusive right to the work.

As it follows from Unnumbered Paragraph 2 of Paragraph 3 of Article 1229 of the Civil Code of the Russian Federation, the income gained from the joint use of the result of intellectual activity or the means of individualization shall be distributed among all right holders in equal portions, unless otherwise is stipulated by the agreement concluded between them.

As the exclusive right is not an analogue of the liability civil right, but it is a kind of an absolute right[1], and the relations between the co-owners must be settled applying the norms of Chapter 16 of the C.C.R.F. “The Common Property.”

Thus, if there are the facts of the use by one of the authors of the work created in co-authorship and gaining income from such use, the other co-authors shall be entitled to file a statement of claim on the recovery of the income gained from it, proportionally divided between the co-authors in accordance with the creative contribution made by each of the co-authors to the creation of this subject matter.

In addition, by virtue of express reference by the law (Paragraph 4 of Article 1258 of the C.C.R.F.), each of the co-authors shall be entitled to undertake measures by himself to protect his rights, including in the case when the work created by the co-authors forms an inseparable whole, that is, one of the co-authors shall be entitled to protect his rights regardless of the will and position of the others.

It is worth noting that, in terms of the protection of the proprietary rights, the co-authors are a kind of “joint creditors.” If one of the rights stipulated by Article 1270 of the C.C.R.F. is violated, one of the co-authors shall be entitled to claim to stop such violation regardless of the will of other co-authors.

At the same time, the provisions of Paragraph 4 of Article 1258 of the C.C.R.F. in this case shall be applied taking into account the principle of individualization of guilt and preventing multiple bringing the person to responsibility for committing the same offense. That is, the co-author may seek the recovery of compensation for the illegal use of the same work in the case if earlier the offender has still not been prosecuted for the analogous, in terms of time and place, illegal use of the same work.

The similar legal position was reflected in Resolution of the Intellectual Property Court of April 15, 2014 No. 19440/13 in case No. А39-3670/2012.