<<

2. THE RIGHTS AND DUTIES OF THE PARTIES UNDER THE CONTRACT OF THE AUTHOR'S ORDER

The contract maintenance is formed by the rights and duties of counterparts. Considering the rights and duties of the parties under the contract of the author's order, it is necessary to draw a conclusion, that the basic duty of the author is creation of product with the set characteristics.

Execution by the author it is obliged - nosti on product creation generates necessity of observance of some rules.

First, the object of the copyright should be created the author personally. Hence, the author has not the right to involve in creation of product of other authors (co-authors) without the consent of the customer [199]. For elimination of possibility of occurrence of a situation at which the author will be engaged in product creation not, and other person, V.Poguljaev suggests to include following position in the contract: ...avtor have not the right without consent of the customer to involve to creation of product of co-authors and as to borrow another's creative activity [200].

It is thought what to include the given rule in the text of the contract there is no necessity. This results from the fact that the right of the debtor to assign the duty on other person has limits. The author has not the right to shift execution of the duty on other person, proceeding from a being of the relations arising at making contract of the author's order as product creation is carried out by the concrete author in advance chosen by the customer. Thus, the author undertakes to create product personally.

As it was marked earlier, the contract of the author's order can be carried to number of fiduciary contracts. Considering stated, the duty on product creation personally the author follows from a being of the analyzed contract. It is impossible to disagree with V.Poguljaevym that the author in all cases has the right to employ proof-readers, editors, type-setters and other persons, whose work does not carry creative character [201]. It is necessary to notice also, that the customer has the right to familiarise with a course of works at any stage of creation of product.

Secondly, the object of the copyright should be created the author in the term established by the contract. In a case when the term of a contract has come, at necessity and in the presence of reasonable excuses for end of creation of object of the copyright the additional period of grace lasting the one fourth part of the term established for execution of a contract if the agreement of the parties does not provide longer period of grace (item 1289 GK the Russian Federation) is given to the author.

Thirdly, the author is obliged to create product on the material carrier or in other form (item 1 of item 1288 GK the Russian Federation). In this connection in the civil law theory there was a question: whether the product expressed not on the material carrier, and in other form Is transferred to the customer? In the event that it is transferred, how?

As it was marked in the previous chapter, results of intellectual activity and the means of an individualization equal to them cannot be alienated. However the rights to such results and means, and also material carriers in which corresponding results or means are expressed, can be alienated or different ways to pass from one person to another (item 4 of item 129 GK the Russian Federation).

Therefore the legislator in legal definition of the contract of the author's order has not specified, that the created product is transferred to the customer. Now active development of a network information field that leads to creation of new objects of the copyright (for example, an Internet site) is observed. In particular, development cloudy storehouses, services, technologies promotes concept updating the material carrier.

It is thought, that a duty of the author is transfer to the customer of the material carrier in which the object of the copyright or finishing to data of the customer of product in other accessible to perception is expressed by the third parties to the objective form (by radio, phone, by means of the electronic letter, performance with the report on conferences, representation of choreographic statement, circus number i.t.p.). In particular, And. G.Matveev fairly notices, that product transfer by e-mail develops of two legally significant actions with such product: 1) creation of an electronic copy of product; 2) a direction of this copy on an information-telecommunication network in the form of the electronic message to concrete [202 address.

After end of work on product, the author is obliged to transfer to the customer the material carrier of object of the copyright or to inform of the customer product in other accessible to perception the third parties to the objective form. As a rule, besides transfer of the created object of the copyright expressed on the material carrier or in other form it is necessary to transfer to the customer and the rights to product. It is impossible to disagree that legislative division of copyrights into the exclusive right, the personal non-property and other rights, presented in ch. IV GK the Russian Federation, essentially does not influence structure of system of copyrights. Isolation of various copyrights in group of other rights is practically convenient, but theoretically incorrect. The rights included in this group are elements of a subsystem either property copyrights, or non-property copyrights [203]. Under the contract author's the order transfer is come under by exclusive rights to product. In this case it is necessary to conclude the contract on alienation of the exclusive right or the licence contract in a combination to the contract of the author's order or to conclude the uniform (mixed) contract providing rules of the contract of the author's order and the licence contract (or contracts on exclusive right alienation).

The analysis of legal regulation of the contract of the author's order shows, that in the law the list of counter duties of the customer directly is not fixed.

In the legal literature the point of view that acceptance of the product expressed on the material carrier or in other form should not be considered as a duty of the customer is stated. Scientists explain it to that in item 1288 GK the Russian Federation such duty is not fixed. Therefore it is impossible to force the customer to make action on its acceptance. In this case the author has the right to demand the indemnification [204].

Hardly it is possible to agree with the specified opinion for following reasons. From sense of the analyzed contract follows, that the basic duty of the customer or the third party specified to it is acceptance of the product expressed on the material carrier or in other form. Otherwise in the gratuitous contract of the author's order there is no basis for responsibility putting on on the customer. The author has not the right would be to declare requirements about the indemnification because of default by the customer of a duty on acceptance of the material carrier (or other objective form) on which finds the expression product. This results from the fact that the right to collecting of losses probably only at infringement of execution of a corresponding duty by the counterpart. The customer can refuse acceptance of the material carrier (or not to carry out acceptance in other objective form) in case product mismatches objective criteria. In this situation it is necessary to speak about inadequate execution of a contract of the author's order. For uniform understanding and application of the investigated contract it is necessary to specify in its legal definition in a duty of the customer to accept the product expressed on the material carrier or in other accessible to perception by third parties to the objective form. Therefore it is necessary to state item 1 of item 1288 GK the Russian Federation in the following edition: Under the contract of the author's order one party (author) undertakes to create the product caused by the contract by request of other party (customer), and the customer undertakes to accept the product expressed on the material carrier or in other accessible to perception by third parties to the objective form. In the contract of the author's order the duty on acceptance of the created product by the third party can be provided.

Thus, acceptance of object of the copyright expressed on the material carrier or in other objective form, is a duty of the customer. Certainly, if the author has not performed creative work on creation of product and has not presented result of the work to the counterpart, hence, and to accept to the customer there will be nothing. In this situation it is necessary to speak about default of the contract of the author's order.

For today in the civil legislation (unlike GK RSFSR 1964) There are no rules in the order of approval of object of the copyright, to entering into it of changes. probelnost positions of the modern Russian legislation on product approval negatively affects development of the normal civil circulation in sphere of creation of objects of copyrights within the limits of the contract of the author's order. The matter is that acceptance of the product expressed on the material carrier or in other form, can testify to the fact of the performed work. However considering quality of the performed work, lacks can be revealed. It is obviously necessary to establish a presumption on approval of the product expressed on the material carrier or in other form accessible to perception. For this purpose expediently optional regulation of a rule about term during which the author should be informed on approval or disapproval of product. If the notice is not directed the author to the term established by the contract, product as it is represented, it is possible to consider as the approved customer. It is thought, that 30-days term for approval if other term is not provided by the contract of the author's order is sufficient. The given possibility to the parties to change term of approval of result of the performed work is proved by specificity of product created under the contract or several products.

The fact of disapproval the customer of the product created by the author can entail different consequences. So, at motivirovannom refusal of approval of product and impossibility of entering into it of corrections to the customer should be accorded a right to refusal of the contract. Hence, the author can lose compensation. In case of disapproval of product, but in the presence of possibility of its correction the author on request of the customer should make changes and (or) additions to product and repeatedly to present to its customer. For this purpose the contract parties need to draw up the bilateral statement with instructions of necessary completions and terms of their performance. At refusal of the author of execution of requirements about completion of object of the copyright the customer also should have a right to a termination of the contract and attraction of the author to responsibility for inadequate default of the contract.

Hence, it is necessary to provide circumstances at which the customer has a right to disapproval of product. Considering, that in GK the Russian Federation the considerable quantity of various objects of copyrights inclusion of the exhaustive list for their disapproval customers is not obviously possible is fixed. Therefore the bases on which customers get the right to make disapproval of product should be provided directly in the contract of the author's order. For example, the customer can insist on reduction of volume of product till the size established by the contract, elimination of the out-of-date information, etc. It is necessary to support the offer And. P.Sergeeva about necessity of the coordination counterparts of new term during which it is necessary to present changed and (or) the added product. Absence of the arrangement on completion term leads to disputable situations [205]. However as it was marked above, the requirement about entering into product of changes and additions can be shown only in the limits provided by rules of the contract of the author's order. In particular, the customer has not the right to demand from the author to write the foreword to science product if it has not been in advance provided by the contract.

Considering stated, it is necessary to include in item 1288 GK the Russian Federation a following rule: the Customer should within thirty days if other term is not established by the contract to inform the author on a deviation transferred to it under the contract of the author's order of the product expressed on the material carrier or in other form accessible to perception, or on necessity to make to amendment product, with instructions of a being of demanded corrections within treaty provisions. In the event that the notice is not directed the author when due hereunder, product is considered the approved customer.

At the conclusion of the cummutative contract of the author's order it is necessary to pay a duty of the customer to the author compensation for the created product. A rate of commission, conditions and an order of its payment are defined by the customer in the contract of the author's order. E.A.Sukhanov notices, that compensation can be defined in the fixed (lump-sum) sum, in the form of percent of the income of sale of copies of the future object of the copyright (royalty) or in the form of a combination of that and other kind voznagrazhde - nija [206].

In judiciary practice cases of inadequate execution by customers of the duty on payment of compensation to the author are extended.

So, for example, in the Court decision by the intellectual rights from February, 11th, 2016 the claimant (author) refers that it has executed the treaty obligations in full, however the respondent (customer), in turn, the obligation on payment of compensation has not executed. Having considered the given situation, the court has solved the requirement about payment to the author of compensation to satisfy, as the fact of inadequate execution on payment of compensation for the scenario created by the claimant is documentary confirmed by the respondent of the obligations. Moreover, the claimant to execute treaty provisions has directed on the electronic address of the respondent ready work, however the respondent neither to the term established by treaty provisions, nor by dispute consideration motivirovannogo refusal has not declared [207]. A conclusion that payment of money resources in established by the contract of the author's order term is a duty of the customer it is possible to meet as well in other judgements [208].

Further it is necessary to address to a question on putting on of the expenses connected with creation of product on the parties of the contract of the author's order. In the current legislation the given question remains not settled. In the legal literature the opinion on fastening in GK the Russian Federation rules on which on creation of object of the copyright the person under which order it and is created [209] should bear expenses is expressed. However it is represented, that duty distribution on execution of expenses should be defined by the agreement of the parties that can be fixed in the law provisional rule. We suggest to fix in GK the Russian Federation the norm establishing a duty to assign expenses on creation of object of the copyright to the customer if other is not provided by the agreement of the parties.

Under the general rule of the right and a duty of the parties under the contract of the author's order stop in view of its appropriate execution. However in some cases there can be a necessity for the preschedule termination or change of the contract of the author's order. In the civil legislation it is not provided special provisions about change or a termination of the contract of the author's order. The exception is constituted by possibility of the customer only regulated by the legislator in some cases unilaterally to refuse the given contract. Therefore in need of change or a termination of the contract of the author's order it is necessary for counterparts to be guided by general provisions on a discharge, and also it is necessary to consider norms about change and cancellation grazhdanskopravovogo contracts.

Since June, 1st, 2015 in GK the Russian Federation is entered the separate article devoted to such extrajudicial procedure of a termination of the contract, as refusal of the contract (execution of a contract) (item 450.1 GK the Russian Federation). It is impossible to disagree with M.A.Egorovoj that refusal of the contract is not the civil responsibility form though it and is connected with party deprivation under the contract of rights. Actions on unilateral refusal of execution of a contract are not directed on causing to other party of the contract property lishe - ny [210]. In case of realisation by the counterpart of the right to unilateral change of treaty provisions or at unilateral refusal of its execution the counterpart should operate reasonably and honesty, considering the rights of other party. In the decision of Plenum VS the Russian Federation About some questions of application of general provisions G razhdanskogo the code of the Russian Federation about obligations and their execution is noticed, that infringement of this duty can entail refusal in judicial protection in full or in part, including a recognition insignificant unilateral change of conditions of the obligation or unilateral refusal of its execution [211].

In the civil legislation of a rule on unilateral refusal of the contract of the author's order are provided only for the customer. So, according to item 1289 GK the Russian Federation after the period of grace given to the author, the customer has the right to refuse the contract of the author's order unilaterally. Considering, that such refusal is lawful act there are no bases for application of rules about contractual responsibility. Besides, the customer has the right to refuse the contract of the author's order directly upon termination of the term established by the contract for its execution if the contract by this time is not executed, and from its conditions obviously follows, that at failure to meet a date of execution of a contract the customer loses interest to the contract.

In spite of the fact that one of principal causes for fastening of special rules about the contract of the author's order is the strengthened protection of "weakness", i.e. the author, norm about granting to the customer of the right to unilateral refusal of the contract is justified. This results from the fact that in practice there are many situations when product is created with infringement of the term specified in the contract, and the customer has already lost interest to the created product. For example, the parties have concluded the contract of the author's order according to which the author was obliged to create a poem which the customer planned to read on wedding of the relative. In the literature other examples, lawful refusal of execution of a contract of the author's order in case of interest loss are resulted also: impossibility of use of product owing to its relevancy to certain event - for example, the scenario of carrying out of opening of Olympic games if by the moment of its writing they have already begun; The scientifically-practical comment to the become invalid legislation [212].

In paragraph end we will generalise the formulated conclusions.

According to the current legislation following duties of the author are named.

First, a duty of the author is creation of object of the copyright. The offer of scientists on distribution of action of the contract of the order for creation not only objects of the copyright, but also other objects of intellectual property has not been supported, as in it there is no practical necessity. It is established, that discharge of duty on product creation attracts observance of several rules. The first rule - product should be created the author personally. The second rule - product should be created in the term established by the contract. The third rule - product should be created on the material carrier or in other form.

Secondly, the author is obliged to transfer to the customer the product expressed on the material carrier or to inform of the customer product otherwise.

In GK the Russian Federation is absent the list of duties of the customer. The conclusion that the acceptance of product expressed on the material carrier or in other form, it is necessary to consider as a duty of the customer is drawn. It is offered to reflect the specified duty in legal definition of the contract of the author's order. Necessity on a presumption establishment on approval of the product created by the author is proved. Disapproval consequences are defined. It is concluded, that the bases for disapproval the customer of the created product should contain in the contract text. In case of the conclusion of the cummutative contract of the author's order it is necessary to pay a duty of the customer to the author compensation for the created product.

In the current legislation the order of putting on of the expenses connected with creation of product on the parties of the contract of the author's order is not provided. It is proved, that duty distribution on execution of expenses should be defined by the agreement of the parties. It is offered to fix in GK the Russian Federation the norm establishing a duty to assign expenses on creation of object of the copyright to the customer if other is not provided by the agreement of the parties.

Position of the law on granting to the customer of the right to unilateral refusal of the contract, in case of the expiration of the period of grace, or after the term termination if the contract by this time is not executed is supported, and from its conditions follows, that at failure to meet a date of execution of a contract the customer loses interest to the contract.

<< | >>
A source: Belousov Vladimir Nikolaevich. the CONTRACT of the AUTHOR'S ORDER In CIVIL LAW of Russia. The dissertation on competition of a scientific degree of the master of laws. Irkutsk - 2018. 2018

More on topic 2. THE RIGHTS AND DUTIES OF THE PARTIES UNDER THE CONTRACT OF THE AUTHOR'S ORDER:

  1. 1. THE PARTIES OF THE CONTRACT OF THE AUTHOR'S ORDER
  2. 3. The rights and duties of the parties under the contract
  3. THE CHAPTER III. THE RESPONSIBILITY OF THE PARTIES UNDER THE CONTRACT OF THE AUTHOR'S ORDER. THE BASES OF REDUCTION AND CONDONATION OF THE AUTHOR
  4. 3.2. Specificity of the rights and duties of the parties under the contract of insurance of professional responsibility
  5. THE CHAPTER II. THE PARTIES AND THE MAINTENANCE OF THE OBLIGATIONS RELATIONS FOLLOWING FROM THE CONTRACT OF THE AUTHOR'S ORDER
  6. 4. Ways and an order of protection of the rights of the parties under the international contract. The international arbitration
  7. instructions about the rights, duties and a responsibility of the parties of the contract of affreightment of the cargo, the United Nations Organization entered by the Convention on sea transportation of cargoes (G amburgskie rules)
  8. 1. RESPONSIBILITY OF THE CUSTOMER AND THE AUTHOR UNDER THE CONTRACT OF THE AUTHOR'S ORDER
  9. 1. The rights and duties of the parties of the contractual obligation of delivery for law-enforcement bodies
  10. 1. CONCEPT AND THE LEGAL CHARACTERISTIC OF THE CONTRACT OF THE AUTHOR'S ORDER
  11. 3. DIFFERENCES OF THE CONTRACT OF THE AUTHOR'S ORDER FROM ADJACENT CIVIL-LAW TRANSACTIONS
  12. 2.3. Protection of the rights of the parties of the contract concluded in the electronic form
  13. THE CHAPTER I. GENERAL PROVISIONS ON THE CONTRACT OF THE AUTHOR'S ORDER
  14. 3.2. The rights and duties of the seller in the sale contract of the goods by the right of Scotland
  15. 3.3. The rights and duties of the buyer in the sale contract of the goods by the right of Scotland