>>

THE WORK GENERAL CHARACTERISTIC

Urgency of a theme of research. The journalism is transformed to a century of rapid development of information technologies after evolution of means of reception and data transmission also. World mass-media more and more actively operate on an Internet platform, using its universal possibilities and the various content created both professional participants of the media industry, and users (so-called user-generated content, the user content - English).

Thus frequently the materials, which mass-media use for creation and distribution of own product, are objects of the copyright. The acute problem of their use with a view of informing and the message of news, commenting and criticism, creation of parodies etc. in many respects is removed by free use of products.

Free use of products is understood as a number of exceptions of the copyright which allow to use creative products on which there was no yet a term of protection of exclusive rights, without reception of resolution of the legal owner and without payment to it of compensation, but, as a rule, with instructions of a name of the author and a loan source. Free use of products is always limited by a number of conditions: methods and use sphere, obligations to observe the personal non-property rights of the author.

Positions about free use of products contain in the Bern convention, and also are fixed by all countries ratifying the convention: in Russia corresponding norms are reflected in the Civil code of the Russian Federation, and in the USA - in the Code of the USA. Without the doctrine of diligent use of products all system of the copyright in the USA becomes unconstitutional, that time and again confirmed the Supreme court of the USA, addressing to a freedom of speech and expressions which is guaranteed by the First amendment to the Constitution of the USA. On spirit this statement is true and for Russia as freedom of thought and a word is guaranteed also by the Constitution of the Russian Federation in item 29, also
Stipulating freedom to search, receive, transfer and extend the information any lawful method, freedom of the mass information and a censorship interdiction. Thus, existence of a complex of exceptions of the copyright ensures information freedom, including mass.

Special value has free use of products for mass-media. Without citing of products, shootings in the places opened for visiting, direct switching-on from public actions during which time in an aether protected products can be transferred, - without it and much another it is impossible to present work of modern editions of mass-media. However development of new technologies of creation and content distribution, including protected author's the right of products, results and in new legal collisions. Among the thorny questions - use in mass-media of so-called orphaned products (orphan works - English) which authors are unknown, and also a problem of gain of the control of legal owners behind use of products by means of means of technical protection which frequently do not leave possibilities for free use of products with a view of the comment, criticism etc.

Editions face these and other problems both Russian, and the American mass-media. The United States of America are one of the cores net-exporters intellectual property and owing to it the influential lobbyist in the field of the international legal regulation in this sphere.

In the USA the analogue of free use of products - the so-called doctrine of diligent use (fair use doctrine - English) is applied. But practical application in mass-media of free use of products to Russia and doctrines of diligent use in the USA is connected with a number of complexities that judiciary practice of both countries shows.

The doctrine of diligent use is more specific in comparison with the Russian analogue owing to two important factors: first, at the heart of the American doctrine the general principle of definition lays
Conscientiousness of the user thanks to what it represents harmonous enough complex of exceptions; secondly, the doctrine was generated and continues to develop in a general law. Because the American legal system of the right vysokorazvita, in the USA often there are collisions between the copyright and other rights, including fundamental laws of the person, for example, the right to a freedom of speech and opinion expressions, freedom to search, receive, extend the information etc. Therefore, from our point of view, the reference to a wide experience of application of the doctrine of diligent use in the USA extremely actually for a modern Russian science, especially in the light of that some American laws (for example, Digital Millennium Copyright Act) became samples for a number of the newest Russian legislative initiatives (in particular, amendments to the Federal law «About the information, information technologies and about information protection» and the Civil remedial code of the Russian Federation). Investigating experience of the USA, we can predict potential conflict situations in the Russian practice, and search for ways of their resolution.

Degree of a scientific readiness of a theme. Problems of legal regulation of mass media are considered as a whole by only separate domestic scientists, including JU.M.Baturin, V.N.Monahov, A.G.Richter, M.A.Fedotov, V.L.Entin and some other. During the pre-revolutionary period works of many researchers, among which A.V.Bakuntsev, S.A.Beljatskin, A.A.Borzenko, J.I.Gambarov, M.V.Gordon, P.D.Kalmykov, JA.A.Kantorovich, D.A.Koptev have been devoted studying of the domestic copyright,

A. To V.Pankevich, A.I.Rejtblat, I.G.Tabashnikov, G.F.Shershenevich and others, however to history of free use in works of the listed researchers it has been given a few attention. The Soviet period and modern system status of the copyright studied I.A. The twin,

B. L.Volfson, E.P.Gavrilov, I.I.Zasursky, I.A.Zenin, K.B.Leontev, D.Liptsik, A.E.Morgunova, A.V.Ostashevsky, I.A.pankeev, K.P.pobedonostsev, A.P.Sergey, E.A.Sherstoboeva, V.L.Entin. Many from
The specified researchers concerned a question of free use of products (including in mass-media) and separate heads of the works or article have devoted to this theme. For example, about a modern condition and practice of free use of products wrote I.A.pankeev, E.A.Sherstoboeva, I.A. The twin, I.A.Zenin, E.P.Gavrilov, A.P.Sergey; to R.I.Sitdikova and S.V.Romanovsky concerned a question of maintenance and a combination of private public and public interests in civil and, in particular, in the copyright, E.B.Leanovich considered a problem of balance of interests in development of intellectual property right, K.N.Kostyuk mentioned a problem of orphaned products; copyright historical development in Russia was studied by A.V.Bakuntsev, R.S.Nagornyj, modern world practice in this sphere - A.G.Richter, I.I.Zasursky and others. The question of free use of products and adjacent problems were considered and in a number of dissertational researches. So, free use of products in aspect of system interaction of principles of the copyright was considered by S.S.Borodin, and R.S.Kuramagomedov investigated a problem of free use of products, access to which has been limited by means of means of technical protection of copyrights. However the dissertational works devoted to free use of products in mass-media of the USA and (or) Russia, till now it has not been created.

Copyright system in the USA studied U.F.Patri, M and D.Nimmery, R.R.Bouker, L.R.Patterson, S.U.Lindberg, M.Rose, D.Fizer, R.Dizli, R.L.Holsinger, R.A.Riz, P.N.Leval, D.N.Pember, L.Lessig, R.Najts, P.Goldstajn and many other things. Special attention to a theme of diligent use of products gave U.F.Patri in the monography, M and D.Nimmery, P.Goldstejn, D.N.Pember, R.L.Holsinger in fundamental works about the copyright, and also M.Sag in the monography about early precedents in an English and American general law, L.R.Patterson, M.Hejns and T.Bekls in articles about a modern condition and about
Prospects of development of the doctrine, and P.Ofderhajde and P.Jazi have developed recommendations which have laid down in a basis of the Code of the best an expert on diligent use of products in mass-media of the USA and of some similar documents.

Research hypothesis: in legislative and judiciary practice of the USA and Russia the tendency to narrowing of legal possibilities for free (diligent) use of products, including in mass-media, as response to development and simplification of technologies of spread of knowledge and author's products is historically observed; this tendency can negatively affect practice of work of editions of mass-media and lead to limiting of freedom of the mass information.

Object of research: free (diligent) use of products in mass-media of the USA and Russia.

Object of research: features of practical application of the copyright in the USA and Russia, first of all in a context of free use of products in mass-media.

Research objective: to study free (diligent) use of products in mass-media of the USA and Russia as standard aspect of communications: to track history of formation and a modern condition, to carry out the comparative analysis modern pravoprimenitelnoj experts and to develop recommendations about realisation of free use of products in activity of editions of mass-media of Russia.

Research problems:

1) to consider evolution of sources of the right reflecting development of free use of products in mass-media during the specified period;

2) to study features of legislative norms on free use of products at each stage of their formation;

3) to carry out the documentary analysis of texts of the judgements connected with free use of products in mass-media;

4) to reveal the basic tendencies in development and practice of application of free use of products in mass-media throughout the studied period;

5) to spend the content-analysis of materials of the international agencies freely using products of civil journalists (on an example of materials about war to Syria);

6) on the basis of reconsideration of a theoretical material and field interrogation of journalists to offer recommendations about application of free use of products in editions of the Russian mass-media.

Scientific novelty of dissertational work consists that in it for the first time in the Russian practice attempt of complex research of free use of products in mass-media of Russia is undertaken and comparison with theoretical and practical base on this question in the United States of America is spent. For the first time in a scientific turn to Russia on history of formation of the doctrine of diligent use of products extensive materials are entered into mass-media of the USA. The original analysis of features of the Russian and American legislation on a dissertation theme is carried out. On the basis of the made and analysed selection of judgements on the given subjects to Russia and the USA outputs about last tendencies in pravoprimenitelnoj are presented practice, conceptual problems - such as the tendency to narrowing of practice of application of the doctrine because of means of technical protection of products are formulated, the explanation of some problem aspects of use of author's products in mass-media and possible ways of the decision is offered. Also the Code project on free use of products in the Russian mass media (on the basis of studying by the author of experience of mass-media of the USA and practice of journalists of the Russian television channel of RBC) is developed.

The theoretical and practical significance of work consists in possibility of use of outputs and a material dissertational 8

Researches for a writing of uchebno-practical grants, lectures, monographies on history and features of application of the copyright and free use of products in mass-media; for carrying out of profound statistical researches and the content-analysis of materials of mass-media; for carrying out of discussions in professional community and for creation of the all-Russian Code of the best the expert on free use of products in mass-media that will lead to wider legal use of author's products in practice of work of the Russian mass-media and will lower quantity of conflicts.

The practical significance is supported by the results of the content-analysis of materials of two largest video-agencies presented in the appendix, "Rejter" (Reuters) and «Television news Assoshiejted a press» (APTN) in 2012-2013 about a confrontation in Syria - on purpose to track, how much often leading mass-media resort to free (diligent) use of products for creation of news video data. In the appendix the form of the questionnaire of directive interviews which were spent among journalists of television channel of RBC by working out of the project of the Code of the best an expert on free use of products to mass-media of Russia also is presented.

The research area corresponds to the passport of a speciality 10.01.10 - journalism: item 17. Journalism as object of legal regulation and item 28. Problems of freedom of the press and its realisation.

The methodology and the methods of research used in work, are defined by the purpose, problems, object and an object of research. Complexity of a studied phenomenon has demanded application of system and functional approaches to its consideration and judgement. At the heart of methodology of dissertational work historical, logic, rather-legal, comparative methods, and also the documentary analysis, the content-analysis, ordering, deduction and an induction were used.

On protection following positions are taken out:

1) Practice of judicial protection of exclusive copyrights in the USA and Russia shows, that if free use of the borrowed material in new product in mass-media transformativno (i.e. the borrowed material is used in other purposes and different ways, rather than original product, or will essentially transform the maintenance and-or the form), above probability, that it will be recognised by lawful.

2) the Toolkit for pre-judicial settlement of disputes of legal owners and the users, entered into the USA «the Law on the copyright during a digital epoch», has created possibilities for abusing the copyright, including for the purpose of limiting of distribution of the information and hindrance to the critic and freedom of expression of opinion in mass-media.

3) In Russia preconditions for formation of the similar tendency in practice of application of the legislation on the copyright have arisen with recent acceptance of amendments in FZ «About the information, information technologies and about information protection» and the Civil remedial code of the Russian Federation (made so-called «the Antipiracy law»). The requirements entered by them about removal potentially «illegally placed information», «containing objects author's and either) the adjacent rights» or references to such information under the threat of blocking of a site or site pages, create conditions of legal uncertainty for editions online - of the mass-media resorting to free use of products.

4) the Recognition of free use of products is capable to ensure possibility to users to submit the right, and not just «positive protection» judicial claims in connection with infringement of their rights to free use. It will force legal owners at a requirement direction about removal or content blocking to take into consideration freedom of the information and freedom of the mass information.

5) Open licence dogovory allow legal owners to give to users additional possibilities for free use of products or ahead of schedule to translate products in public property. However possibilities for free use of products, including in mass-media can limit a number of conditions of open licences.

6) the research carried out Russia specifies in low degree of knowledge of journalists about possibilities of free use of products in mass-media that can lead to self-censorship and (or) to increase in legal risks. To increase volume of materials legally used in mass-media, to raise quality of let out production and to lower quantity of legal conflicts to editions an expert on free use of products working out and introduction of Codes of the best helps with mass-media.

Degree of reliability of results of research. Empirical base of research texts of primary sources (have made standard documents, including acts of the USA, Russian empire, the USSR and the Russian Federation), and also precedents and the decisions which have been taken out by courts of these countries during the studied period. Original texts on sites of courts, in collections of Library of the Congress of the USA, on sites - agregatorah («Judicial reshenija.rf», "RosPravosudie", "Adviser", "Arbitr.ru", etc.), in official documents, in special magazines and collections («Magazine of the Ministry of national education», «Socialist legality», «the Soviet justice», «Judiciary practice of RSFSR», "mediaskop" and others), specialised blogs (a blog of "Fund of electronic boundaries», "Tehdyort.kom", «Harward lo revju», "Leksdidzhitl.ru", etc.) were considered In archives of libraries (the Russian state library, the All-Russia state library of the foreign literature it. Rudomino) and so on. As an empirical basis publications in mass-media of Russia and the USA, concerning judicial disputes also have served
About free use of products in journalism of these countries, record in specialised (legal and others) blogs, own questionnaires and interview.

Reliability of results of dissertational research proves to be true enough of the considered examples of materials of mass-media, outputs of the content-analysis of videoclips and scripts of agencies Rejter and Assoshiejted press televizhn the News, and also judgements on the affairs connected with free use of products in Russia and the USA.

Approbation of results. The basic outputs and positions have been presented in the form of reports at scientific conferences and seminars of faculty of journalism of the Moscow State University of M.V.Lomonosova: "Lomonosov" (2011, 2012, 2013, 2014, 2015), «society Transformation in the information: right and journalism problems» (2013), «Legal aspects of activity of mass-media» (2013) and «the Moscow readings» (2014). Articles on a dissertation theme have been published in year-books of chair of history and legal regulation of domestic mass-media of faculty of journalism of the Moscow State University of M.V.Lomonosova (2013, 2014).

The basic results of research have been stated in six scientific publications, total amount 5,5 items of l., including in three articles published in editions, recommended VAK the Ministries of Education and Science of the Russian Federation in the List of leading reviewed scientific magazines and editions.

Structure. Dissertational work consists of the introduction, four heads, the conclusion, the list of the literature including 340 names and appendices.

| >>
A source: Sobol Margarita Nikolaevna. FREE USE of PRODUCTS In MASS MEDIA of the USA And Russia. The dissertation AUTHOR'S ABSTRACT on competition of a scientific degree of a Cand.Phil.Sci. Tver - 2017. 2017

More on topic THE WORK GENERAL CHARACTERISTIC:

  1. THE WORK GENERAL CHARACTERISTIC
  2. THE WORK GENERAL CHARACTERISTIC
  3. the WORK GENERAL CHARACTERISTIC
  4. THE WORK GENERAL CHARACTERISTIC
  5. THE WORK GENERAL CHARACTERISTIC
  6. THE WORK GENERAL CHARACTERISTIC
  7. THE WORK GENERAL CHARACTERISTIC
  8. a work General characteristic
  9. THE WORK GENERAL CHARACTERISTIC
  10. THE WORK GENERAL CHARACTERISTIC
  11. THE WORK GENERAL CHARACTERISTIC
  12. THE WORK GENERAL CHARACTERISTIC
  13. THE WORK GENERAL CHARACTERISTIC
  14. THE WORK GENERAL CHARACTERISTIC