Free use of works (not to be confused with the use of free works ) - use of works (for example, their publication) under the influence of exclusive copyright or related rights, without permission of the author and without paying remuneration, but respecting the right of authorship, the right to name and to protect the reputation of the author [1] . For the free use of works is also characterized by the fact that it is possible, as a rule, only in relation to legally published (or published) works. In addition, it does not restrict personal non-property rights, on the contrary, in almost all cases of free use, the law requires that the name of the author of the work and the source of borrowing be indicated. The range of cases of free use of works contained in the relevant articles of the Civil Code is not subject to broad interpretation [2] .
Signs of free use in Russian law are:
- use of protected works without the consent of the copyright holder;
- without signing a contract with him;
- without payment of remuneration [3] .
Free use is possible only in extremely limited limits. The Civil Code of the Russian Federation clearly defines cases of non-contractual and free use of copyright objects, it provides a number of situations and conditions under which it is possible to “without permission” use copyright works without violating the rights of the copyright holder, and therefore do not incur legal liability .
Content
Legal regulation of free use
From January 1, 2008, the free use of the work is regulated by part 4 of the “Civil Code of the Russian Federation”. In it, the free use or, as stated in the law, “the use of objects of related rights without the consent of the copyright holder and without paying remuneration” is governed by article 1306. It provides for the following cases of such use:
- free reproduction of the work for personal purposes (Art. 1273 of the Civil Code);
- free use of the work for informational, scientific, educational or cultural purposes (article 1274 of the Civil Code);
- free public performance of a musical work (Art. 1277 GK);
- free reproduction of the work for law enforcement purposes (art. 1278 of the Civil Code);
- free recording of the work by the broadcasting organization for short-term use (Art. 1279 of the Civil Code).
It is also possible to use objects of neighboring rights in the cases provided for by chapter 71 of the Civil Code itself. For example, article 1325 establishes that if the original or copies of a legally published phonogram are put into civil circulation on the territory of the Russian Federation through their sale or other alienation, the further distribution of the original or copies is allowed without the consent of the holder of the exclusive right to the phonogram and without paying remuneration; and paragraph 2 of Art. 1343 states that if the exclusive right of a publisher to a work has not been transferred to the acquirer of the original work, the acquirer shall have the right, without the consent of the holder of the exclusive right of the publisher, to use the original work in the manner specified in paragraph 2 of clause 1 of article 1291 of the Civil Code.
Other cases of free use of objects of related rights by the Code are not allowed.
Grounds for the free use of works
Free reproduction of a work for personal use
To address the issue of the possibility of free use of the work, the Code establishes essential conditions that must be fulfilled:
- the work must be made public;
- the use of the work must be for personal purposes;
- the use of the work can be carried out only by an individual [4] .
It should be noted that, in contrast to ZoAP, the Civil Code expressly provides that only a citizen (natural person) can use for personal purposes. Therefore, legal entities cannot make such use.
Reproduction, according to Art. 1270 of the Civil Code, involves the production of one or more copies of the work, therefore, without the limitations of the number of copies reproduced for personal purposes specifically established by law, a citizen has the right to produce both one copy of the work and more.
Free reproduction for personal use contains a number of direct prohibitions in the law, namely:
- reproduction of works of architecture in the form of buildings and similar structures;
- reproduction of databases or their essential parts;
- reproduction of computer programs, except for the cases provided for by article 1280 of the Civil Code of the Russian Federation;
- reproduction (clause 2 of Article 1275 of the Civil Code of the Russian Federation) of books (in full) and musical scores;
- video recording of an audiovisual work during its public performance in a place open to public access, or in a place where there are a significant number of persons not belonging to the ordinary circle of the family;
- reproduction of an audiovisual work with the help of professional equipment not intended for use at home.
Free use of the work for informational, scientific, educational or cultural purposes.
The copyright (art. 1274 of the Civil Code) establishes the cases when the free use of works is allowed, that is, without the consent of the author or other copyright holder and without paying him a reward, but with the obligatory indication of the author's name.
Such cases include the use of a work for informational, scientific, educational or cultural purposes.
The scope of use is determined by the purpose of such use.
The forms of using the work for informational, scientific, educational or cultural purposes include:
- citation in the original and translation for scientific, polemical, critical or informational purposes, including reproduction of excerpts from newspaper and journal articles in the form of press reviews;
- the use of the work and excerpts from it as illustrations in publications, radio and television programs, audio and video recordings of an educational nature;
- reproduction in the press, posting on the air or cable articles on economic, political, social and religious topics;
- reproduction in the press, broadcast on the air or by cable of publicly delivered political speeches, appeals, reports or other similar works (the authors of such works retain the right to publish them in collections);
- reproduction or communication to the public in reviews of current events by means of photography, cinematography, by posting on the air or on cable works that become seen or heard during such events;
- public performance of legally promulgated works by presenting them in live performance, carried out without the purpose of making a profit in educational organizations, medical organizations, social service institutions ... by employees (employees) of these organizations and institutions and persons respectively served by these organizations and institutions;
- reproduction without profit in relief-point font or other special ways for the blind. The exceptions are cases when such works are specifically created in similar ways.
Libraries are given the right to provide copies of works for temporary free use. For granting for temporary use the consent of the author or other copyright holder, as well as the payment of remuneration is not required.
Creation of a work in the genre of literary, musical or other parody or in the genre of caricature based on another (original) lawfully published work and the use of this parody or caricature is allowed without the consent of the author or other holder of the exclusive right to the original work and without paying him remuneration.
Free public performance of a musical work
In accordance with the Civil Code, Part 4, Art. 1277 [5] without the consent of the author and without paying remuneration such a public performance of a musical work is possible in an exhaustive number of cases:
a) during the official ceremony;
b) during a religious ceremony;
c) during the funeral.
But at the same time the amount of execution is limited. Limited, or their volume must be justified by the nature of the above-mentioned ceremonies.
Justification of the volume (including and, for example, quoting), apparently, is a certain evaluation category, which says that it is not worth playing completely in the cases listed above, or you will have to prove the justification in the case of claims.
Another aspect: if there are words in the song, then it seems that it is not recommended to use them, because nothing was said about it in the law.
One more thing: probably, if the author, however, is opposed, then it can also not be used during a religious ceremony, because may affect art. 28 of the Constitution [6] , and, in fact, moral beliefs are violated.
Free Reproduction of Work for Law Enforcement
It is allowed without the consent of the author or other rightholder and without paying remuneration to reproduce works for an administrative offense case, for inquiry, preliminary investigation or legal proceedings in the amount justified by this purpose [7] .
By law enforcement it is necessary to understand not only legal proceedings, but also administrative proceedings, inquiry and preliminary investigation. For the purposes of law enforcement, a work can be reproduced, shown, executed, translated into another language, etc. From the general meaning of this norm, it follows that it can apply to both published and unpublished works [4] .
Notes
- ↑ Free use of works // Publishing dictionary reference: [electron. ed.] / A. E. Milchin . - 3rd ed., Corr. and add. - M .: OLMA-Press, 2006.
- ↑ Commentary to the fourth part of the Civil Code of the Russian Federation (main) / ed. A.L. Makovsky (Statute, 2008)
- ↑ See: Free use of copyright objects // “Entrepreneur without a legal entity. PBOYUL, 2008, N 7
- ↑ 1 2 Korchagina N. P., Morgunova E. A., Pogulyaev V. V. Comment. to the fourth part of the Civil Code of the Russian Federation (itemized) / ed. V.V. Pogulyaeva (CJSC Yustitsinform, 2008)
- ↑ COPYRIGHT - Civil Code of the Russian Federation of December 18, 2006 No. 230-ФЗ - Part 4 \ Consultant Plus
- ↑ RIGHTS AND FREEDOMS OF A PERSON AND CITIZEN - Constitution of the Russian Federation adopted 12/12/1993 \ Consultant Plus
- ↑ Art. 1278 of the Civil Code of the Russian Federation (part four) of December 18, 2006 No. 230-FZ (adopted by the RF State Duma on November 24, 2006) (as amended on November 8, 2008) // Rossiyskaya Gazeta, No. 289, December 22, 2006,
See also
- Fair use
- Freedom of panorama
- The right to remuneration for the free reproduction of phonograms and audiovisual works for personal use
- Copyright and Related Rights
- Public domain
- Copyright infringement
- Wikipedia: Fair Use Criteria
Articles and books
- Free use of copyright objects // “Entrepreneur without a legal entity. PBOYUL, 2008, N 7
- Ananieva E.V. Free use of works // “Modern Law”, N 3, 2000