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§ 2. Kinds of infringements of the legislation on intellectual property in pre-election campaign

At the present stage of a political life it is difficult to imagine pre-election campaign without creation and distribution to pre-election campaign of propaganda rollers, posters, leaflets, newspapers and other propaganda materials.

Each candidate or selective association for the attempt to make the greatest impact on voters aspires to raise the popularity, using known images, photos, pieces of music, video fragments etc., that is objects of intellectual property.

In the present paragraph it would be desirable not only to open necessary concepts, to present possible ways of use by candidates and selective associations of objects of intellectual property in pre-election campaign, kinds of infringements by candidates and selective associations of the legislation on intellectual property in pre-election campaign, but also, the most important thing to designate the actual problems arising in practice in connection with use of given objects.

Infringement of the legislation on intellectual property candidates or selective associations can be qualified vessels in quality of a selective offence only in those cases if it takes place in the pre-election campaign, defined by the selective legislation, and if

Materials in which objects of intellectual property were wrongfully used, will be recognised by propaganda.

Propaganda materials in the legislation are understood as the printing, audiovisual and other materials containing signs of pre-election campaign, propaganda concerning a referendum and intended for mass distribution, promulgation in election campaign (article 2 of the Federal act from 12.06.2002 N 67-FZ «About the basic guarantees of suffrages and the rights to participation in a referendum of citizens of the Russian Federation»). Thus, at the analysis of use of objects of intellectual property in pre-election campaign presence in materials of signs of pre-election campaign has great value.

Pre-election campaign definition is fixed in point 4 of article 2 of the Federal act from 12.06.2002 N 67-FZ as the activity which is carried out in election campaign and having for an object to induce or inducing voters to voting for the candidate, candidates, the list, lists of candidates or against it (them). The made definition is volume enough reveals in point 2 of article 48 of the specified law according to which the pre-election campaign which is carried out in election campaign, following actions (the list closed) admit:

— Appeals to vote for the candidate, candidates, the list, lists of candidates or against it (them);

— Preference expression to any candidate, selective association, in particular instructions on for what candidate, for what list of candidates, for what selective association will vote the voter (except for a publication case (promulgation) results of poll);

— The description of possible consequences in case this or that candidate will be selected or will not be selected, this or that list of candidates will be admitted or will not be admitted to distribution of deputy mandates;

— Information distribution in which data on any candidate (any candidates) obviously prevail, selective association in a combination to positive or negative comments;

— Distribution of the information on the activity of the candidate which has been not connected with its professional work or execution by it of the office (official) duties;

— The activity promoting creation of the positive or negative relation of voters to the candidate, the selective association which has proposed the candidate, the list of candidates.

Thus, if the actions which are carried out by the candidate (selective) associations concern wrongful use of objects of intellectual property, but do not fall under one of specified above actions, pre-election campaign signs will be absent, and the candidate and (or) selective association cannot be involved in konstitutsionno-legal responsibility.

In the scientific literature, in particular Mostovshchikovym V. D,

Pre-election campaign as a stage of selective process is characterised as the period of election campaign defined by the law, in which frameworks the registered candidates, selective

Associations carry out selective actions with a view of prompting of voters to voting, to voting for those or others

Candidates or against them [234]. It is necessary to pay attention, that the made definition does not include such subjects of pre-election campaign as citizens, public associations, and also assumes, that the propaganda period begins only from the date of registration of candidates or selective associations while according to a part of 1 article 49 of the Federal act from 12.06.2002 N 67-FZ the general propaganda period begins with a stage of promotion of the candidate or the list of candidates. In this connection the author of dissertation can offer following definition of pre-election campaign as to a stage of selective process, which is represented to it to more expedient, - the period of election campaign defined by the law, in which frameworks subjects of pre-election campaign (citizens, proposed candidates, selective or public associations) carry out selective actions in forms supposed by the law and lawful methods with a view of prompting of voters to voting, to voting for those or other candidates (lists of candidates) or against them.

It is necessary to designate the general problem which is connected including with use of objects of intellectual property in pre-election campaign - a problem of differentiation of propaganda and informing of voters in mass-media as in case of absence of signs of propaganda materials in which objects of intellectual property have wrongfully been used, should not admit quality propaganda and to candidates (selective associations), admitted infringement of the legislation on intellectual property in pre-election campaign, should not be applied konstitutsionnopravovye sanctions.

As marks Buzin A.J., the greatest (and unsoluble within the limits of the legislation) a problem is represented by value judgment of materials and actions as propaganda or неагитационных1. The given problem is supported by the majority of researchers of pre-election campaign [235 [236] [237].

The constitutional court of the Russian Federation in the Decision №15-П from 30.10.2003"On business about check of constitutionality of separate positions of the Federal act" About the basic guarantees of suffrages and the rights to participation in a referendum of citizens of the Russian Federation "in connection with inquiry of group of deputies of the State Duma and complaints of citizens S.A.Buntmana, K.A.Katanjana and K.S.Rozhkova" in points 4.1. And 5 has declared, that «the criterion, allowing to discriminate pre-election campaign and informing, can

To serve only presence in propaganda activity of the special purpose (it is allocated by the author of dissertation) - to incline voters in the certain party, to provide support or, on the contrary, counteraction to the concrete candidate, selective association "," the actions, not having for an object to induce

Voters to vote for candidates or against them, i.e. not caused by objectively confirmed intention to achieve concrete result on elections (it is allocated by the author of dissertation), cannot be considered as pre-election campaign ».

In the scientific literature the given positions are rather critically estimated. So, Nechiporenko T.V. believes, that the Constitutional Court actually so interpreted item 2.1 of article 48 of the Federal act from 12.06.2002 N 67-FZ, that has put before participants of process - applicants

- Unsoluble problem - to prove intention (purpose) of authors of materials in mass-media on declination of voters to vote pro or contra the concrete candidate, selective объединения1.

According to Koljushina E.I., in practice it turns out, that informing in mass-media even about appeals to vote pro or contra is not propaganda if there is no intention which «consists only in comprehension of the direct purpose of the given wrongful act» (pre-election campaign) and cannot cover its consequence. In other words, informing in mass media even about appeals to vote pro or contra is not propaganda. The in itself actions specified in point 2 of article 48 of the Federal act from 12.06.2002 N 67-FZ, are a version of expression of opinions. External similarity under the form is not the proof

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Propaganda presence. Thus it would be desirable to notice especially, that one of choice major factors in the Russian conditions is the factor of recognition of the candidate (selective association), and recognition easily "takes root" the massed informing, therefore the given decree [238 [239] actually justifies unwillingness of the state to change unequal position of political parties/candidates in relation to equal access to mass-media.

The decision of the Constitutional Court of the Russian Federation from October, 30th, 2003 N 15-P has seriously affected practice of qualification of propaganda in mass media. After its acceptance to prove claims to mass media concerning infringement of the selective legislation it is extremely difficult, and judiciary practice knows few cases of a recognition of materials in mass media propaganda if the newspaper, the broadcasting company, other mass media do not consider as its that. Most likely, it already other extreme measure from which it is possible to depart after change of the selective legislation [240]. Thus it is necessary to recognise, that the Constitutional Court of the Russian Federation has not specified, how pravoprimenitelju to define presence of the special propaganda purpose.

Thus, taking into account specified above a problem of differentiation of pre-election campaign and informing on the basis of that at the decision of a question on attraction of the candidate (selective association) to a konstitutsionno-legal liability of infringement of the legislation on intellectual property it is necessary to establish necessarily the fact not only fulfilment of the given infringement during the propaganda period but also to establish presence of signs of pre-election campaign - the given problem is actual and in relation to a theme of the present dissertation.

We believe, that it is necessary to designate also, that we understand as an intellectual property category. According to item 1 of article 1225 GK the Russian Federation the intellectual property represents «results of intellectual activity and the means of an individualization of legal bodies equal to them, the goods, works, services and the enterprises to which the right protection» is given. Concerning a theme considered by the author of dissertation interest from listed in specified article is represented by products of a science, the literature and art, that is objects of the copyright. Among them according to article 1259 GK it is necessary to allocate: pieces of music (with the text or without the text), literary works (prose, verses etc.), products of painting, a sculpture, a drawing, design, graphic stories, comics and other products of the fine arts, photographic products and the products received in the ways, similar to a photo, audio-and videoclips.

The question on what to understand as a category "intellectual property", is rather debatable in legal science. But because detailed research of the specified category and the analysis of the definitions presented in the scientific literature are not included into problems of the given research within the limits of a theme of the present work, we will be limited only to representation of some positions of scientists.

For example, Sergeys And. P understands as intellectual property «set of exclusive rights both personal, and non-property character on results intellectual and first of all creative activity, and also on some other objects equal to them which concrete list is established by the legislation of the corresponding country taking into account the international obligations accepted by it» 1.

Kaljatin V. O offers the similar formulation from Sergeevym A. P - «intellectual property - set of exclusive rights concerning non-material objects (being work products), having economic value and capable freely to be alienated taking into account the restrictions established in interests of protection of individual rights of founders of corresponding objects and public interests of a society» [241 [242].

Because the intellectual rights include exclusive rights, the personal non-property and other rights, more proved the definition presented Gavrilovym is represented to us

E.P., Leontevym K.B. which understand as intellectual property «set of the rights arising concerning a number

Non-material objects - results of intellectual activity and individualization means », specified in законодательстве1.

So, having presented some definitions which maintenance is necessary for considering in the present work, we will start the characteristic of kinds of infringements of the legislation on intellectual property in pre-election campaign.

First of all we will short designate kinds of use of objects of intellectual property in pre-election campaign. Kinds of use of objects of intellectual property in whole (irrespectively to pre-election campaign) are defined grazhdanskopravovymi by ways of use, such, as reproduction,

Public display, public execution, finishing to general data, the message in an aether or on a cable, processing of product, etc. (article 1270 GK the Russian Federation), and also citing, product creation in a genre of literary, musical or other parody or in a genre of a caricature on the basis of other (original) legally promulgated product and use of these parodies or a caricature (article 1274 GK the Russian Federation), etc. But as research of civil-law aspects of intellectual property is not included into a subject of the present dissertation, among kinds of use of objects of intellectual property in pre-election campaign from positions of a constitutional law depending on kinds of objects of intellectual property and owing to the greatest prevalence we will allocate the following:

1. Use of images, including photographic products (it is independent or as images of product of architecture or fine arts product), images of any objects (for example, cards),

2. Use of pieces of music (with the text or without),

3. Use of audiovisual products (video fragments, videoclips) 4,

4. Use of trade marks, logos, эмблем5,

5. Use of text materials (стихи6, articles and t.d).

It is necessary to reserve especially, that in the present work will be

Those infringements of the legislation on intellectual property which concern wrongful use of objects of intellectual property by subjects of pre-election campaign, and only in that degree which concerns a theme considered in the dissertation are analysed only. Nevertheless, in the present work the characteristic of infringement of the legislation on intellectual property in pre-election campaign from civil law positions that will allow to define a circle of corresponding problems concerning infringements of the legislation on intellectual property in pre-election campaign as [243 [244] [245] [246] [247] some question has problem character from the point of view of civil law that complicates process of acceptance by vessels of decisions on application of konstitutsionno-legal sanctions will be presented minimum (whenever possible).

The analysis of kinds of infringements of the legislation on intellectual property in pre-election campaign is expedient for beginning with wrongful use of images in propaganda materials. The given infringement becomes frequent enough an occasion to a reference to the court with the requirement of application of corresponding konstitutsionno-legal sanctions (more often about cancellation of registration of the candidate, the list of candidates or cancellation of registration of the candidate included in the registered list of candidates).

Not in all judgements, in our opinion, registration cancellation is represented proved. So, in particular, according to Definition of the Supreme Court of the Russian Federation from 09.09.2014 N 30-APG14-6 registration of selective association in connection with use of propaganda materials with Che Guevara's image which has been regarded by Court as infringement of the legislation of the Russian Federation about intellectual property [248] has been cancelled. According to Appeal definition

The Krasnodar regional court from 11.09.2014 on business N 33-20349/2014 registration of the candidate has been cancelled on the basis of use by it in the printing propaganda materials of a photo without the consent автора.2

It would be desirable to pay attention, that courts in these and many other things decisions, applying konstitutsionno-legal sanctions to selective association and the candidate which have broken the legislation on intellectual property, in bolshej degrees investigated only questions concerning infringement of copyrights to a corresponding photo, at all not having mentioned a question of infringement of equality of the rights of selective associations (candidates) in selective process. Vessels only established the facts confirming presence of konstitutsionno-legal relations - the facts of promotion or registration of candidates or selective associations on elections of corresponding level and the facts of manufacturing and distribution of propaganda materials.

Accordingly, if the purpose of preservation of such basis of application of konstitutsionno-legal sanctions as infringement of the legislation on intellectual property in pre-election campaign, is maintenance of a principle of equality of candidates and selective associations in selective process not absolutely proved evasion of vessels from consideration of corresponding questions is represented and application only a formalistic approach - in judicial materials completely is absent the information concerning harmony of the given infringement to applied konstitutsionno-legal sanctions.

In aspect of research of infringements of the legislation on intellectual property interesting practice which develops now concerning an order of use of the image of the citizen is represented. In the previous edition of the Federal act from 12.06.2002 N 67-FZ «About the basic guarantees of suffrages and the rights to participation in a referendum of citizens of the Russian Federation» and to selective associations it was authorised to candidates to use images of any citizens, but from their written approval. The federal act from 05.04.2016 N 92-FZ "About modification of articles 48 and 54 Federal acts" About the basic guarantees of suffrages and the rights to participation in a referendum of citizens of the Russian Federation "and articles 62 and 68 Federal acts" About elections of deputies of the State Duma of Federal assembly of the Russian Federation "Federal act article 48" About the basic guarantees of suffrages and the right to participation in a referendum of citizens of the Russian Federation "has been added by point 9.1 according to which there was an interdiction for use in propaganda materials of the candidate,

Selective association of images of the physical person, except for use by selective association of images put forward by it on corresponding elections of candidates (including as a part of the list of candidates), including candidates among an uncertain circle of persons, and also use by the candidate of the images, including among an uncertain circle of persons. The central electoral commission has explained the relation to an interdiction for use in propaganda of images of persons which are not candidates of the State Duma of the Russian Federation on elections which will pass on September, 18th, 2016. As follows from the letter of the secretary of CEC Maji Grishinoj, in propaganda nevertheless it is possible to use persons if they represent drawings or artistic images. Thus, the Communist Party of the Russian Federation, for example, can use in propaganda of the image of Joseph Stalin and other leaders. Majja Grishin in the letter has underlined, that if the candidate or party declare, that in propaganda artistic images "the fact of use of the image of the physical person comes under to proving by the person embodied on such изображении1,1 (it is allocated by us) are used. In the letter there is a sending to point 48 of the Decision of Plenum of the Supreme Court of the Russian Federation from June, 23rd

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2015 № 25 according to which the fact of promulgation and image use by the certain person comes under to proving by the person embodied on such image. And in aggregate with article 152.1 of the Civil code it means, that for the died physical persons (for example, Joseph Stalin) to prove use of their image children and surviving spouses, and in their absence - parents should.

The given approach is of interest in the light of that in case of use of the image of the citizen in propaganda materials of the candidate or selective association, he or, in case of it [249]

Death, its children and surviving spouses, and in their absence - parents should prove such use. But if to speak about copyrights in practice there is to a certain extent a paradoxical situation: the court comes to conclusion about infringement of the legislation on intellectual property, not only not considering the given infringement in light

Principle of equality of candidates (selective associations), but also without attraction of authors or the legal owners which rights are broken - they, as a rule, not only do not take part in judicial разбирательстве1, but also even, probably, do not possess the information that their rights have been broken by someone.

We suppose, that norms of the selective legislation can provide including legislation observance about

Intellectual property in that case, when among subjects, who can address in court with the requirement about attraction of the candidate or selective association to konstitutsionno-legal responsibility, and also among persons, who are got to take part in litigation (for example, among the third parties), will be the author or the legal owner of corresponding product believing, that its rights have been broken at product use in propaganda materials of the candidate or selective association. But thus, considering, that vessels do not consider infringement of a principle of equality of candidates, still disputable there is a question concerning, whether so it is necessary to solve dispute on infringement of the legislation on intellectual property in frameworks konstitutsionno-legal, instead of civil-law legal relations. [250]

Some questions are connected with use of photographic images of product of architecture or fine arts product in pre-election propaganda materials of candidates and selective associations. According to article 1276 GK the Russian Federations are supposed free use of product of architecture or product of the fine arts without the consent of the author or other legal owner and without payment of compensation by reproduction and distribution of the made copies, the message in an aether or on a cable (and since October, 1st, 2014 and by finishing to general data [251]). The given rule operates provided that corresponding products constantly are (are located) in a place opened for free visiting, except for cases when the product image is in the way specified above the basic object of use or when the product image is used with a view of profit extraction (concerning fine arts product) or when product is visible from a place opened for free visiting (for architecture products). Thus, for free use specified above objects in pre-election campaign, as a finding specified above products in a place opened for free visiting (or a condition of "visibility" from such place - observance of such conditions suffices for architecture products) and not use of the image of product as the basic object (concerning fine arts product). Thus the Civil code of the Russian Federation does not open criteria of a recognition of the image of product by the basic object of use, and also does not open criteria on which the place admits a place, free for visiting that creates in practice possibility of unreasonable attraction of candidates to konstitutsionnopravovoj responsibility.

Former edition of article 1276 GK provided the Russian Federation, that free use of the image of product of architecture is not supposed by reproduction, the message in an aether or on a cable, including in a case when the product image is the basic object of such use. Since October, 1st, 2014 [252] the given exception concerning architecture products does not operate. In relation to problems considered in the present article it is necessary to notice, that, on the one hand, the given innovation will simplify consideration of quarrels at law concerning use of images of products of architecture during the propaganda period (because it will be not so necessary to solve, whether is

The product image the basic object of use or not), and on the other hand, will complicate consideration of quarrels at law because it will be necessary to solve a question on, whether the object is

Intellectual property fine arts product on which the exception specified above still extends, or the object is architecture product, in which relation

The new rule operates. Besides, not clearly, as cases when in propaganda materials the such will be used should be regulated

Objects of intellectual property, as memorial complexes which, as a rule, are complex architecturally-sculptural products (that is are simultaneously both architecture products, and fine arts products). In our opinion these questions should not dare within the limits of manufacture on the affairs arising from public relations as they demand more detailed studying and special knowledge in the field of art.

We hope, that corresponding innovations will reduce quantity of cases of unreasonable attraction of candidates (selective) associations to konstitutsionno-legal responsibility. Nevertheless, it would be desirable to show, how neuregulirovannost the civil

Legislations it was reflected in acceptance of judgements to

Respective alterations, leading to some discrepancy of judiciary practice.

So, for example, the Supreme Court Republics Sakhas (Yakutia) in the decision from February, 13th, 2008 has considered, that the image stely (was reproduced by a premise of a separate picture) and arches of a memorial complex (the image has been placed in the newspaper in the right top corner, that, in opinion of court, was the independent basic image of a material and was in a prominent place, drawing a sight and attention of readers) in propaganda materials of the candidate were the basic object of reproduction owing to what registration of the candidate has been cancelled. The Supreme Court of the Russian Federation N 74-G08-101 has taken from 26.02.2008 of an opposite position in the Definition, having cancelled the decision of the Supreme Court Republics Sakhas (Yakutia) because the image stely and arches, in opinion of court, were a background for the basic image of the person of the candidate, the used fragment stely could not be and was not the basic object of the given poster as the edition and distribution of the last pursued the aim of prompting of voters to vote for the candidate represented on it.

In the decision of Voskresensky city court of the Moscow area from October, 04th, 2012, the sculpture image has been recognised by the basic object as it has been reproduced separately from other images placed in a propaganda material, is placed in the left top corner in the allocated colour block, dominated in relation to other graphic elements. The court above full court has come to an opposite conclusion, having decided, that the analysis of a propaganda material with a monument photo specifies that the monument image was not the basic object of reproduction: the collective composition - the image of one of a townscape in this connection it was impossible to recognise the sculpture image as the core объектом1 took place. The similar approach met and in some other judgements [253 [254] [255].

It is necessary to notice, that recently the Supreme Court in the decisions concerning application of konstitutsionno-legal sanctions for infringement of the legislation on intellectual property in pre-election campaign spent consecutive enough line of an objective recognition of object the basic (not the core), using as criteria the following: use of the image of product in

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Quality of a background (Definition of the Supreme Court of the Russian Federation from 26.02.2008 N 74-G08-10, Definition VS the Russian Federation from 29.02.2008 on business №74-Г08-20 [256]), use of the image of product for an illustration of texts of articles (Definition VS the Russian Federation from 06.03.2008 on business №51 - Г08-12 [257]), picture use in the muffled manner (Definition VS the Russian Federation from 24.10.2012 on business №43 - АПГ12-15 [258]). In the last some years the Supreme Court became

To be considered also a parity of the sizes of the disputable image and the general sizes of a propaganda material (Definition VS the Russian Federation from 13.10.2012 on business №64-АПГ12-14 [259], Definition VS the Russian Federation from 06.09.2013 on business №86-АПГ

13-101). Nevertheless, still there is no uniform pravoprimenitelnaja a practice on the specified question. Even in "the judiciary practice Review on the affairs connected with the resolution of disputes about protection of the intellectual rights", approved the Presidium of the Supreme Court of the Russian Federation 2015 results on September, 23rd only the general words that use in

Propaganda materials of results of intellectual activity which are not the basic independent object of the information, cannot form the basis for cancellation of registration the candidate (point 64).

In connection with Makartsev A.A.'s given circumstances as one of variants of the decision of the given problem suggests to fix in

G razhdanskom the code more developed characteristic of a category

«The basic object» or to provide exceptions at application of the legislation on intellectual property at use in selective legal relations (in the latter case, according to the specified author, the characteristic «the basic object» to fix in the Federal act from 12.06.2002 №67-ФЗ «About the basic guarantees of suffrages and the rights on

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Participation in a referendum of citizens of the Russian Federation »).

Considering, that the given category still is not opened in

The civil legislation though it is applied already only on

To the relation to images of products of the fine arts, the given question still is actual. Regarding fastening of the given position in G razhdanskom the code the given position is represented to us rather proved as application retaliatory on the character of the konstitutsionno-legal sanctions which are not allowing candidates to accept the further participation in selective race, should not depend from neuregulirovannosti positions of the civil legislation. As to the second offer of the specified author with the given position difficult [260 [261] to agree. In our opinion, the selective legislation and so it is unduly detailed, and is not present the bases to specify there design which should be fixed directly in the civil legislation.

One more aspect of use of photographic products, images of product of architecture or fine arts product is connected with discussion about, whether to consider the Internet as a place opened for free visiting. For example, in 2011 the Supreme Court of the Russian Federation in the definition N 34-G11-16 [262] has underlined from 08.12.2011, that the Internet inherently cannot be a place opened for free visiting, with reference to law requirements. The Internet as a whole is an information field which is not regulated by legal acts. And already in 2013

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To year from 06.09.2013 on business №86-АПГ13-10 the Supreme Court has taken of an opposite position in the Definition, having given reason for it that for image reception is not required input of any registration data (for example, a login and the password), that is it constantly is in a place opened for free visiting, the information placed by its owners in a network "Internet" in a format, supposing the automated processing without preliminary changes by the person with a view of a reuse, is the popular information. Approximately the same argument meets and in other decisions of vessels (accepted as on similar affairs in frameworks of selective legal relations, and in judgements on grazhdanskopravovym искам1). It would be desirable to notice, that the given question as is in the field of civil law regulation, and within the limits of the given branch the problem of uncertainty of the given category should be solved.

Judiciary practice research has allowed us to reveal and some problems at use in pre-election campaign of trade marks, emblems, logos or symbolics.

So, for example, the Supreme Court, in Definition from 27.02.2009 on business № 1-G09-10, has specified, that a propaganda printed matter of the candidate on which Open Society trade mark «Arkhangelsk TSBK» is placed, was not the goods, it was not on sale, and it extended a staff of the candidate gratuitously, has been made with a view of pre-election campaign, instead of for sale. The propaganda printing material was not the goods in that sense which is put in pawn in norms of paragraph 2 of chapter 76 of a part 4 Civil codes of the Russian Federation. Hence, by the candidate it has not been admitted infringements of the legislation of the Russian Federation about intellectual property. Under such circumstances, the court has considered insolvent arguments of the representative of the applicant that the propaganda material of the candidate is a printed matter on which

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It is forbidden to place Open Society "АЦБК" trade mark. In the decision from 27.02.2009 on business № 83-G09-8 the Supreme Court obosnovanno, in our opinion, has specified, that trade mark use in a propaganda printed matter is impossible, as the given sign is a designation and individualization means is exclusive the goods (article 1477 GK the Russian Federation). Pre-election production extended with a view of pre-election campaign free of charge, not

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Contained the purposes of extraction of profit on production realisation. The similar [263 [264] [265] position is used and in other judgements (Appeal

Definition of the Rostov provincial court from 04.09.2013 on business N 33-117861,

Definition of the Sverdlovsk provincial court from 03.03.2012 on business N 33Л

3355/2012, Appeal definition of the Chelyabinsk provincial court from

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12.09.2014 on business N 11-10513/2014, Appeal definition of the Chelyabinsk provincial court from 12.09.2014 on business N 11-10511/2014 [266] [267] [268] [269], Appeal

Definition of the Kostroma provincial court from 10.09.2015 on business N 33-1718/2015 [270], etc.).

Later judgements in which there was also other position were accepted by the same Supreme Court. So, for example, the Supreme Court of the Russian Federation, having left without change the decision of the Krasnodar regional court, in the decision on business № 18-APG12-10 has satisfied from 13.10.2012 the requirement about cancellation of registration of the candidate on following bases. By court it is established, that the right of use of trade marks "MTS", "Biline", "Megaphone" and "TELE2" is registered for legal bodies, in particular behind open joint-stock company "Pendant-communications" (Moscow) and open joint-stock company "Megaphone" (Moscow). To court it has not been presented proofs of legality of use of trade marks that testified to infringement of requirements of the selective legislation [271].

The contradiction in judiciary practice concerning the specified question is observed and at regional level, including in practice of 2015. So, for example, the Decision of Lenin regional court of of Vladimir from August, 31st, 2015 had been cancelled registration of the candidate of Council of People's Deputies of of Vladimir because in its propaganda material trade marks (logos) of social networks are placed: " VKontakte "," Facebook "," Twitter "," Instagram ", concerning objects of intellectual property of legal bodies, and by the candidate it has not been presented proofs of legality of use of trade marks [272]. Thus the court, making of such decision, was guided only by that trade marks are provided by a state legal protection, disregarding that fact, that use of trade marks had no commercial character, propaganda production was not the goods, hence, in our opinion, exclusive rights to a designation and means of an individualization of the corresponding goods, and, thus, registration of the candidate have not been broken has been cancelled unreasonably. In the given case the question on that, how much by the candidate who used corresponding trade marks (logos) again has not been investigated, the principle of equality of candidates has been broken at pre-election campaign carrying out, the question on has not been investigated what harm is caused to selective legal relations from such use of objects of intellectual property. These are the key moments to which it is necessary to pay attention by consideration of corresponding disputes. Thus have not been investigated neither these questions, nor a question on that, have been how much broken the rights of corresponding legal owners. Accordingly, courts in such cases not only (unreasonably in our opinion) made the decision that use of trade marks breaks the selective legislation, but also did not consider harmony of the applied konstitutsionno-legal sanctions of public harm of the given act.

It would be desirable to give separate attention to such infringement, as wrongful use of symbolics of political party in

Propaganda materials of the candidate or selective association. In practice sometimes there are cases when the right of use of corresponding symbolics was not given to the candidate or selective association. In particular, on such basis in 2014 the Supreme Court had been satisfied the requirement about cancellation of registration of the candidate which has been put forward as self-promotion, but in the propaganda materials used symbolics of political party without it разрешения1. In our opinion, this unique infringement of the legislation on intellectual property which can be applied without a harmony principle as its public harm is represented more obvious because similar actions, certainly, mislead voters, influences formation of their will and breaks a principle of equality of candidates.

Concerning such civil-law ways of use of objects of intellectual property in pre-election campaign as citing, processing, product creation in a genre of literary, musical or other parody or in a genre of a caricature on the basis of other (original) legally promulgated product and use of these parodies or a caricature it is necessary to tell, that features of such use concern as exclusively to civil-law, instead of to konstitutsionno-legal relations. So, by consideration of requirements about cancellation of registration of the candidate (the list of candidates) and application of other konstitutsionno-legal sanctions specified in the selective legislation questions on illegal loan of product or citing in the original in the information purposes of legally promulgated products in the volume justified by the purpose of citing [273 [274], about possible citing видеороликов1 and citations from musical произведений2 in the information purposes, a question on, in particular, are solved, whether is the object of intellectual property independent object of the copyright, instead of the processed variant of object of the copyright, a parody or a caricature on product (for example, the question on a parity of such literary genres as a parody and a lampoon, difference of processing from product creation in a genre of a parody, a caricature it is considered), etc.

It would be desirable to mention one more important practical question connected with use of objects of intellectual property in pre-election campaign. It is a question of cases when the candidate or selective association conclude the civil-law contract with the third parties which subject is creation, use of object of intellectual property or alienation of exclusive rights to it (accordingly, the contract of the author's order, the licence contract, the contract of alienation of the rights). In practice situations when the corresponding party under the contract (the counterpart of the candidate or selective association) is not so diligent are possible and breaks the legislation on intellectual property. Thus the candidate or selective association, concluding the corresponding contract, believe, that honesty and lawfully use objects

Intellectual property of authors (legal owners). Accordingly, there is a question - whether should in a similar case for infringement of [275 [276] legislations on intellectual property answer the candidate (selective association) from the point of view of a constitutional law? And how to be in the event that in the contract it is specified, what a liability of infringement of the legislation on intellectual property, including for infringement of the rights and interests of the third parties (including authors and legal owners) the counterpart under the contract with the candidate (selective association) bears?

Now judiciary practice goes on a way of attraction of candidates and selective associations to konstitutsionno-legal responsibility in similar cases. So, in particular, according to Appeal definition of the Oryol provincial court from 07.09.2015 on business N 33-2350/2015 registration of the candidate on following circumstances has been cancelled. For candidate G under the contract of the author's order with transfer to it of the rights the printing propaganda material has been made, which candidate has presented to electoral commission and has started to extend. Candidate Z registered on the same election district has addressed in court with the requirement about cancellation of registration of its competitor on the basis of infringement of the legislation on intellectual property. In session of the court it was found out, that «the maintenance of propaganda printing material G with accuracy coincides with the maintenance of a propaganda printing material of the person, [before participating in elections in 2008] Except for insignificant differences (colour of the brochure, a party emblem to which the candidate belongs, number of election district, names and phones of establishments and the organisations and last page of a propaganda material) ». Thus the Court has critically estimated presented G the contract of the author's order from 20.07.2015 and witness's testimonies, according to which the author of the text of the reference of candidate G to voters counterpart G under the contract as they contradict other proofs collected on business, in particular, to a copy before the let out propaganda printing material which customer was the corresponding person, to witness's testimonies, and also the collection (brochure) which has been let out in 2008 Thus is, having estimated the presented proofs, the court has come to conclusion about satisfaction of the declared requirements in view of non-observance by the candidate of Restrictions at pre-election campaign carrying out that is the basis to cancellation of its registration as the candidate of the Oryol city council national депутатов1.

According to Appeal definition of the Arkhangelsk provincial court from 27.08.2013 N 33-5394 registration of candidate SH.M has been cancelled. In a printing propaganda material of the candidate the photo without the consent of its author has been used. The contract on which conditions the executor under the contract has been obliged to present written the consent of authors and legal owners to use of objects of copyrights in printing propaganda production and their distribution has been presented to court. During a legal investigation the court has come to conclusion, that the author of a photo is not the executor under the contract with the candidate, and, despite positions of the above-stated contract, the candidate not were is presented proofs of legitimacy of use of object of copyrights infringement of the legislation about intellectual собственности.2, accordingly, took place

We believe, that application to candidates or selective associations of konstitutsionno-legal responsibility for actions of the third parties because of which the legislation is broken about

Intellectual property in similar situations unacceptably. If to compare application of konstitutsionno-legal responsibility for

Infringement of the legislation on intellectual property with

Civil responsibility application in similar cases it is necessary to note the following. In practice if the person directly using object of intellectual property, breaks at the such

Appeal definition of the Oryol provincial court from 07.09.2015 on business N 33-2350/2015. [The Electronic resource]//Legal-reference system «the Adviser Plus».

Appeal definition of the Arkhangelsk provincial court from 27.08.2013 N 33-5394 [the Electronic resource]//Legal-reference system «the Adviser Plus».

Use of the right and interests of the third parties (including authors or legal owners), the person which rights were are broken, can, in particular, as article 1252 GK the Russian Federation addresses to the infringer (to the person wrongfully using result of intellectual activity) with the requirement not only about a recognition of the right, about suppression of actions,

Outraging, but also about the indemnification. In case of acknowledgement

Infringements of the rights the person wrongfully using result

Intellectual activity, can on request of the author or

The legal owner to pay to its such damages, and then to address with claim for exoneration to the counterpart under corresponding contract

(The author's order, the licence contract, the contract of alienation of the rights). Thus, civil responsibility can be transferred directly on the person who misleads the counterpart concerning presence at it the rights to results of intellectual property and operates unfairly from the point of view of the law. But the similar scheme cannot operate in a constitutional law. If the candidate or selective association are involved to konstitutsionnopravovoj a liability of infringement of the legislation on intellectual property there is a question - with what

The requirement from the point of view of konstitutsionno-legal relations they can address to the unfair counterpart? It is represented, that in that case the candidate can use only civil-law means and ways of protection, for example, to address to the unfair counterpart with the requirement about the indemnification. But, first, it is different kinds of responsibility, and secondly, here it is not obviously possible to speak about restoration of initial position of the parties, that is, in particular, restoration konstitutsionno - a legal status of the registered candidate or selective association.

For validity of a konstitutsionno-legal liability of infringement of the legislation on intellectual property the principle of definiteness of the basis of legal responsibility which means full and accurate legislative fastening of all elements of structure of the offence, excluding matters also

Possibility of their ambiguous understanding and not supposing an arbitrariness in the discretion pravoprimenitelja (and, accordingly, excluding discrepancy of judiciary practice).

Shturnev A.E. suggests to formalize the given principle in

The federal act from 12.06.2002 №67-ФЗ, having established, that the basis of konstitutsionno-legal responsibility for selective offences is fulfilment of the act containing all signs of structure of an offence, provided законом1.

The same approach is considered also by Shishkinoj O. E who believes, that the concrete act provided by the federal act can be the basis of a konstitutsionno-legal liability of infringement of suffrages of citizens only, which is characterised by the state and public harm (encroaches on suffrages of citizens), illegality (is infringement of the selective legislation), guilt, and also possibility of application of konstitutsionno-legal sanctions. Otherwise the konstitutsionno-legal liability of infringement of suffrages of citizens itself gets the character breaking these rights [277 [278].

As marks Sidjakin A.G., the establishment of konstitutsionno-legal responsibility for any propaganda infringements supposed by the candidate, basically is possible. The optimum mechanisms of responsibility which are not establishing disproportionate restrictions of suffrages of citizens [279] however should be thus found.

Formalistic approach to attraction of candidates and selective associations to konstitutsionno-legal responsibility, and also some discrepancy of judiciary practice result, in our opinion, to unreasonable application of konstitutsionno-legal sanctions in the form of refusal in registration of the candidate (item 24 of article 38 from 12.06.2002 №67-ФЗ), refusal in registration of the list of candidates (article 38 item 25), an exception of the candidate of the certified list of candidates (article 38 item 26), cancellation of registration of the candidate (article 76 item 7), cancellation of registration of the list of candidates (article 76 item 8), cancellation of registration of the candidate included in the registered list of candidates (article 76 item 9), that, in turn, influences the maintenance of election campaigns of all levels and leads to blasting of authority of selective institutes. Therefore the establishment and application of such measures of konstitutsionno-legal responsibility demand observance of balance of the rights, freedom and legitimate interests as candidates (selective associations), and authors and legal owners in this connection it is necessary to choose an optimum variant of a parity, coordination of norms civil and a constitutional law. As to fill the selective legislation with the corresponding special provisions, concerning uses of objects of intellectual property, it is not obviously possible, we believe, that the relations resulting use of objects of intellectual property in pre-election campaign, should be regulated first of all by norms civil, instead of a constitutional law. Thus the court, considering corresponding dispute and estimating put by illegal use of objects of intellectual property of a damage as one of additional criteria of an estimation can consider the size the fact of use of corresponding objects within the limits of participation of concrete persons in konstitutsionno-legal relations, namely in pre-election campaign.

We believe, that infringement of the legislation on intellectual property candidates or selective associations in pre-election campaign should be qualified vessels in quality of a selective offence only in the event that it corresponds to all elements of structure of the given selective offence as to a version of the constitutional tort. Having considered features of object and the objective party of infringements of the legislation on intellectual property in pre-election campaign as elements of structure and having stated doubts in necessity of their allocation, we come to conclusion that now, taking into account actual pravoprimenitelnoj practice, to recognise corresponding acts by selective offences it is not obviously possible.

Considering the aforesaid, the author of dissertation offers to make necessary changes to the legislation: to exclude infringement of the legislation on intellectual property as the basis for application of corresponding measures of konstitutsionno-legal responsibility from the Federal act from 12.06.2002 №67-ФЗ (subitem "to" article 38 item 24, subitem "and" article 38 item 25, subitem "d" article 76 item 7, subitem "d" article 76 item 8), and also from other laws, base for which is the Federal act from 12.06.2002 №67-ФЗ.

So, summing up considerations of kinds of infringements of the legislation on intellectual property in pre-election campaign, it is necessary recognise the following:

1. Infringement of a principle of equality of candidates and selective associations in pre-election campaign, as a rule, is not investigated by vessels by consideration of a question on attraction of candidates or selective associations to a konstitutsionno-legal liability of infringement of the legislation on intellectual property in pre-election campaign. In much bigger degree vessels investigate a question of infringement of the legislation on intellectual property, that is civil-law aspects of corresponding infringement (the question on presence of conformity of a prospective offence to norms of the civil legislation is studied, approaches are used, characteristic for consideration of infringements of the legislation on intellectual property as a whole).

2. By present time there was an ambiguous judicial

Practice on consideration of questions of use of trade marks in pre-election propaganda materials, questions of a recognition of a place free for visiting, use of photographic product or product of the fine arts as the basic object of use.

3. Absence of authors or legal owners of product,

Wrongfully used by candidates or selective associations in propaganda materials, among persons who take part in consideration by vessels of infringements of the legislation about

Intellectual property in pre-election campaign, and also attraction of candidates and selective associations to konstitutsionno - legal responsibility for actions of the third parties are represented rather disputable.

4. It is necessary to choose an optimum variant of a parity, coordination of norms civil and a constitutional law. As to fill the selective legislation with the corresponding special provisions, concerning uses of objects of intellectual property, it is not obviously possible, it is offered, that the relations resulting use of objects of intellectual property in pre-election campaign, should be regulated first of all by norms civil, instead of a constitutional law.

5. The analysis of kinds of infringements of the legislation on intellectual property confirms, that there are all bases for an exception of infringement of the legislation on intellectual property as the bases of application of measures konstitutsionno-legal

Responsibility (konstitutsionno-legal sanctions).

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A source: Koval Darya Vladislavovna. INFRINGEMENTS of the LEGISLATION ON INTELLECTUAL PROPERTY In PRE-ELECTION CAMPAIGN In the CONTEXT of KONSTITUTSIONNO-LEGAL RESPONSIBILITY. The dissertation On competition of a scientific degree of the master of laws. Moscow - 2016. 2016

More on topic § 2. Kinds of infringements of the legislation on intellectual property in pre-election campaign:

  1. Koval Darya Vladislavovna. INFRINGEMENTS of the LEGISLATION ON INTELLECTUAL PROPERTY In PRE-ELECTION CAMPAIGN In the CONTEXT of KONSTITUTSIONNO-LEGAL RESPONSIBILITY. The dissertation On competition of a scientific degree of the master of laws. Moscow - 2016, 2016
  2. § 1. Features of separate elements of structure of infringement Legislations on intellectual property in pre-election campaign
  3. Chapter 2. A konstitutsionno-legal liability of infringement of the legislation on the intellectual Properties in pre-election campaign
  4. § 3. Konstitutsionno-legal responsibility of candidates for Infringements of an order of carrying out of pre-election campaign as a guarantee of the rights of citizens on reception of the information on elections
  5. 1. The Teoretiko-legal characteristic of pre-election campaign and its value in election campaign.
  6. 2. Features of the legislation of subjects of the Russian Federation which is in limits of Southern federal district, about pre-election campaign and practice of its realisation.
  7. 2. Formation of standard regulation of pre-election campaign in Russia.
  8. § 2. Pre-election campaign as a guarantee of realisation of suffrages of citizens in the Russian Federation
  9. 3. International legal aspects of standard regulation of pre-election campaign in the modern democratic states.
  10. § 4. Restriction of the constitutional freedom of speech during pre-election campaign. The role of a network the Internet in realisation of a freedom of speech during this period
  11. 3.1. Necessity of rapprochement and harmonisation of positions of Instructions of EU concerning intellectual property with norms of the Russian legislation in intellectual property sphere
  12. 1. Features of realisation of the federal legislation on the pre-election Propagandas.
  13. the Chapter II. The maintenance legal podinstituta - pre-election campaign and practice of realisation of its norms in the subjects of the Russian Federation who are in limits of Southern federal district
  14. Chudov Paul Sergeevich. Konstitutsionno-legal regulation of pre-election campaign in the subjects of the Russian Federation who are in limits Southern federal district. The dissertation on competition of a scientific degree of the master of laws. Stavropol - 2005, 2005
  15. 2.2. Kinds and the maintenance of the intellectual rights and the rights connected with intellectual property, provided by a part of the fourth Civil code of the Russian Federation