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§ 3. Features of the moral rights of the author in the Anglo-American right

All features of the moral rights in the countries of the English-Saxon right are anyhow defined by two circumstances, each of which has been considered by us earlier. First of all, in these countries there was return in relation to civil tradition ideology of the copyright in which public access to the spiritual blessings appears priority, and protection of personal interests of the author is not included into number of the primary goals of the copyright.

Secondly, conceptual formation of the moral rights in Europe was result of intensive discussion about addition of the traditional list of rights [241]

Two new categories: author's and individual rights. It is obvious, that this discussion absolutely alien to system of a general law, has not rendered on it any influence.

The moral rights of the author of a steel not result of organic and natural continuation of principles of system copyright, and a product direct, frequently the painful and latest reception of alien legal concept. The reception of the moral rights has caused in a science serious discussions about fundamental differences of system copyright from system droit d'auteur, assotsiiruemoj with the right of continental Europe.

The remarkable exception, dropping out of the general logic of development of system copyright, the Canadian right is. In spite of the fact that it directly inherits to the British legal system, the French legal culture owing to the historical reasons always made on its essential impact. Already in the first quarter of XX century courts of Canada, even for lack of any legislative guidelines with which it would be possible to support the opinion, took out decisions in which recognised non-property, estestvennopravovoj aspect of the nature of author's competences. For example, in the decision on business V. Sueur it has been declared, that 1911 after the author leaves the property party of the monopoly, behind it the personal or moral right to a product of the mind remains. In 1916 on business V. Geracimo for the author has been recognised the right to its recognition that and on respect

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Its texts.

That the moral rights to that moment have already received de-facto recognition, speed, from which norm of the international law, devoted by it speaks also, have been apprehended in the Canadian law and order. They have appeared in 1931 - almost right after revision of the Bern convention in 1928 and inclusions in it the item 6bis. Canada, thus, became the first country of system copyright, established a clear legal regime of the moral rights, and remained to it up to the end of XX century the Mechanism of the reception which selected the Canadian legislator and have become [242] traditional for countries of Anglo-American rights, consisted in mechanical and practically literal reproduction of the text of the item 6bis in the Copyright law operating on that moment 1921 [243].

Further the author's legislation has been reformed, and norms about the moral rights are detailed. In 1988 items 14.1 have been included in the Copyright law 1985 [244 [245], 14.1, 28.1, 28.2, devoted to a right of authorship and the right to inviolability of product. The list of the protected rights or their maintenance, thus, have not been expanded in comparison with the Bern convention and the previous Canadian law, but formulations have been concretised and brought into accord with other norms of the legislation.

The moral rights cannot be conceded in Canada, but the author has the right to refuse their realisation completely or in a part (item 14.1 item 2). Term of their protection is equal to period of validity of the property copyright (item 14.2 item 1) and constitutes fifty years, since a year following after year of death of the author (item 6).

The Canadian researchers characterise position of the moral rights in the Copyright law of 1985 as typical for the Anglo-American countries, at the same time marking as its characteristic line some rapprochement with civil tradition. The last is especially clearly shown when the general law system is imposed on civil model of private-law regulation as it occurs in Quebec. As is known, constituting a private law basis in territory of a province the Civil code of Quebec [246] and on the structure, and on the kategorialnomu reminds the device the European Civil codes. Item 3 of this Code is devoted inaliennable individual rights - to the right to life, a personal immunity, respect of a name, reputation and a private life. Certainly, with acceptance of the Civil code of Quebec in the Canadian jurisprudence there was a question traditional for the European scientific thought on a parity moral and individual rights. There is a point of view according to which the individual rights listed in item 3 of the Code, form the basis for the moral rights: the right of authorship is a general law special case on a name, and the right to inviolability

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Products - display of the right to respect of reputation.

The given conclusion, as a whole soglasujushchijsja with treatment of the nature of the moral rights in the European jurisprudence, it is impossible to name indisputable with reference to the Canadian right carrying the author's legislation to conducting of the federal legislator and, hence, to system of a general law. From this point of view position of the moral rights in Canada is paradoxical enough, as the close connection with the continental civil law has not played an essential role in their reception spent, as well as in other countries - representatives of system copyright, by means of artificial introduction of the given category an alien legal fabric.

If Canada was the first large country of a general law borrowing institute of protection of the moral rights of the author Australia was last - the Law on the moral rights (Copyright Amendment (Moral Rights), further - MRA) has been accepted only in 2000, but it was preceded by the long public

Discussion in which result the law became the thought most over and balanced in the approach to interests of authors and legal owners [247 [248] [249].

MRA follows a principle of the minimum reception peculiar to all angloamerikanskim to jurisdictions, and guarantees three moral rights: a right of authorship (item 193 MRA), the right to counteract false atributsii (the item 195AC MRA) and the right to inviolability of product (the item 195AI MRA). Term of protection of the moral rights is equal to term of protection of a property right on product, except for the right to inviolability of a piece of screen in which relation it is limited for lives of the author (item 195 AM MRA).

MRA it is relieved of the typical lacks peculiar to statute certificates of the USA and the Great Britain, and combines a wide range of the products to which authors the moral rights are given, with restrictions on refusal of them, comparable with what in practice are supposed in the romano-German right. In particular, the law demands the consent of the author to actions (inactivity) which actually would break its moral rights (analogue of refusal of right realisation), and such consent is valid, only if it is given concerning concrete actions and concrete product (the item 195AWA MRA).

By the law it is established as well the general rule according to which the actions constituting actual breach of law of authorship and the right to inviolability of product, are not an encroachment on them if their fulfilment «was reasonable proceeding from all circumstances» (the item 195AR, 195AS MRA). Same articles establish criteria with which help the rationality of their infringement is defined: the nature of product, the purpose, a way, a context of its use; complexities or losses which could be caused right observance and so on.

The greatest interest represents process of the reception of the moral rights in two largest countries-representatives of an English-Saxon legal family - the USA and the Great Britain where the destiny of this institute has developed extremely dramatically. Introduction of the doctrine of the moral rights in legal use in these laws and orders was the stress demanding not only revision kategorialnogo of the device, but also updating of a legal policy in sphere of relations concerning results of creative activity, transition from a public interest priority to a recognition of opposite directed private interests of the author. The unwillingness to carry out the given changes determined the extremely original approach which has been accepted in relation to the moral rights in these countries.

On the one hand, requirements of the Bern convention, in effect, were not considered as legally obliging. So, the Great Britain, in 1887 of one of the first having joined it, did not hasten implementirovat item positions 6bis. In the USA the problem of the moral rights throughout decades, together with protection of some categories of products and cancellation of a registration order of occurrence of the rights, was the basic obstacle for the joining to the Bern convention [250 [251] [252] [253], and only in 1988 the Congress has passed the Law on it implementatsii. Its text supplied with numerous reservations, showed obvious unwillingness of the legislator to go in implementatsionnom process further a necessary minimum. D. Nimmer noticed, for example, that inclusion in the Law of reservations on absence at the Bern convention of property of self-feasibility has been closely connected with a question at issue on destiny of the moral rights, and unambiguous intention of the Congress consisted in that nobody could come to court in territory of the USA and declare there, that the Bern convention has direct action.

The similar neglect not only was not considered as the Bern convention reprehensible, but also was justified by that in English and American laws and orders already there are adequate mechanisms for protection of personal interests of the author, similar to the moral rights, and observance of spirit of the Bern convention does insignificant ignoring of its letter. Authors of the parliamentary report of 1952 prepared by working out of the British copyright law of 1956 (the Gregory Committee Report on Copyright Law), came to conclusion, that already existing in case and the statute law of norms it is enough for protection of the author, and all blanks can be filled

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The parties in a contractual order.

As to the theoretical researches of that period comparing the European mode of the moral rights with the case of relevant judicial precedents of the Great Britain their authors took of an intermediate position, specifying simultaneously and that the moral rights receive certain protection in judiciary practice, and that this protection fragmentirovana and demands more accurate statute regulation [254].

Similar processes occurred in jurisprudence of the USA. The early works of the comparative character which has appeared in the middle of XX century, concentrated, as a rule, on the European doctrine of the moral rights, and its comparison to the American tradition was reduced to search of the assistants bearing functional loading similar to the moral rights, and has led as a result to working out of the theory of a scrappy blanket (the patchwork theory), based on two arguments which it is possible to name conditionally negative and positive.

The negative argument consists in negation of necessity of fastening of the moral rights in that kind in which they have developed in the romano-German right, for protection of noneconomic interests of the author. The moral or personal non-property rights - no more than one of ways of registration of legal protection frames of these interests. The Anglo-American right was not necessary on the European philosophical abstraction that is why does not know a category of the moral rights. But it does not mean, that it does not contain the rules, similar themes from which the moral rights in the continental law were generated.

The positive argument of the theory is constituted by those rules of law and institutes which, allegedly, give degree of protection of personal interests of the author similar to the moral rights. The list of such assistants joins usually the norms regulating protection against an unfair competition, the right to a private life, diffamatsionnye claims, a number of norms contractual and the copyright. From the point of view of supporters of the theory of a scrappy blanket, personal interests of the author receive reflexion in the right, though and on

To basis of other principles and norms. In Russia this position has been formulated, in particular, I.S.Volkovym, V.L.Volfsonom and M.A.Fedotovym.

Contrary to this opinion, item positions 6bis the Bern convention finally have been entered both in English, and into the American positive law as reputatsionnye losses from their absence became more and more notable. So, in the report of parliamentary committee of the Great Britain on the copyright and the right to design of 1977 (The Whitford Committee Report on Copyright And Designs Law) it has been recognised, that the English right does not meet requirements of the Bern convention, and introduction of a category of the moral rights expediently [255 [256] [257] [258] [259]. The Copyright law, patents and design of 1988 (Copyright, Designs and Patents Act 1988, further - CDPA) [260] has followed to this opinion.

CDPA speaks about four moral rights: a right of authorship (item 77 CDPA), the right to inviolability of product (item 80 CDPA), the right

To counteract attributed authorship (item 84 CDPA) and the right to preservation of photos as fiduciary (item 85 CDPA). From them the rights of the author in strict sense of a word are only first three as the fourth consists that the person who for personal and house needs orders creation of photos or videorecordings (films), has the right to demand from other persons of preservation of these photos or films as fiduciary: not to extend them, not to show publicly, not to broadcast or on an announcement cable and so on.

Real value of the moral rights in the Great Britain is insignificant. At their introduction economic interests of legal owners, and the legislator of an abacus necessary to give by it preference on a case of the possible conflict of the property and moral rights were considered, having supplied articles about the last reservations and exceptions. For example, item 87 CDPA, like the Canadian legislation, supposes refusal of realisation of the moral rights, and as conditional (concerning the separate products, separate ways of use), and unconditional full refusal, including concerning the future products. The given norm brings to naught possibility of their realisation: the majority of authors operate on the basis of typical contractual forms which include a condition about refusal of the moral rights [261 [262]. For the author in many cases to try to protect the interests not by means of the claim from easier

Infringements of the moral rights, and using norms about protection against a defamation, if

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Product distortion harms to reputation of the author.

In the USA the Law on the rights of authors of products of the fine arts (Visual Artists Rights Act, Title 17 U.S.C became the first and at present the unique federal certificate about the moral rights. § 106A, further - VARA) [263 [264]. Thus in a number of states of the USA already at the moment of acceptance VARA own laws devoted to protection of a right of authorship and the right to inviolability operated

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Products.

The law regulates a right of authorship and the right to inviolability of the product which term of protection is equal to term of a life of the author. The right of authorship consists of two subcompetences: the rights to demand instructions of authorship and the right to prevent use of a name of the author concerning product which he did not create (17 U.S.C. § 106A (a) (1)).

VARA does not suppose unconditional refusal of the moral rights: the document by which it is made out, should specify in product and ways of its use to which this refusal (17 U.S.C will be applied precisely. § 106 A (e) (1)). In the American literature it is noticed, that the treaty provisions formulated

As «I refuse all my moral rights», will be void on

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To sense of the law.

The main lack of the law follows from its name. The circle of works to which it extends the action, is extremely narrow and is reduced to fine arts products - painting, a drawing, an illustration and a photo. Besides, even for these categories the additional requirement in the form of existence in an individual copy or the limited circulation (to two hundred copies), created personally the author or bearing its personal signature (17 U.S.C is established. § 101).

It is easy to imagine the motives of the legislator which has forced implementirovat the Bern convention in so cut form. The creative experts used at creation of product of the fine arts, are extremely individualised, and procedure atributsii, both technological, and art criticism, always played a key role at an estimation of its market cost and a cultural value. As a result of it legal and actual figures of the author, as a rule, are identical, and investment with its moral rights only confirms status quo.

In the developed industries connected with collective manufacture - musical, cinema, book - subject-objective communications have less obvious character. As a good example regulation of copyrights to cinema products can serve. The European author's legislation, at an early stage of the formation preferring the producer (physical or to the legal body) as to the unique author and the legal owner, to the middle of XX century has cardinally changed a vector aside

Recognition familiar to us authors of the physical persons who have brought the real creative

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The contribution to its creation.

The right of the USA, however, uses a doctrine combination «works on hiring» (work for hire) and the contractual regulation, taking away to the director, a script writer, [265 [266]

To the composer a place of simple workers-executors and leaving for the producer all rights to product, including a legal right of authorship (17 U.S.C. §§, 101, 201 (b)). The director according to the contract has even no right of definitive installation (final cut right) more often - practice, it is bad soglasujushchajasja with the European legal idealism postulating inviolability of product by the higher value.

The legislation on the moral rights, at all limitation, has had serious influence on Anglo-American scientific thought and has shaken that system of the argument in which legal tools - assistants could serve as their high-grade analogues. Unlike the special provisions guaranteeing restoration of broken copyrights, they are applied by analogy, hence, exclusively on the judge depends, to see this analogy in a concrete case or not.

So, in the USA the right of authorship on the products which are not carried to the fine arts, is protected by rules of protection against an unfair competition on a basis § 43 () Law Lenhema on trade marks of 1946 (15 U.S.C. § 1125 (a)) which forbids use of incorrect designations concerning an origin or the goods description. Among other, under an interdiction sale of the goods made by other person, under the name or mark gets so-called «reverse passing off», that is. The American courts apply this position of the law to a right of authorship and the right to a name by analogy, in which "trade mark" is the name of the author.

Authorship protection as trade mark in itself is interfaced for the author to complexities of material and remedial character. § 43 () Lanham Act makes demands on which qualification of act as infringements of the competitive legislation depends: the incorrect designation of the manufacturer of the goods should cause in consumers false representation about its real manufacturer and cause the last losses [267].

In a much bigger measure not system character of application of the listed institutes is reflected in interests of the author to author's relations. The general law is by the nature the right judicial, that inevitably leaves traces the judicial discretion on protection of these interests. So, in the decision on business Dastar Corp v. Twentieth Century Fox Film Corp. 2003 the Supreme Court has given up in application of Law Lenhema to «an incorrect source of an origin» television serial, property right period of validity on which has expired also which in this connection has passed in public property. Though circumstances of business have not been connected with infringement of the rights of the valid authors per se, the decision possessing standard force, has eliminated possibility of protection of authorship after the expiry of the term of action of property rights further.

The opinion of the Supreme Court was widely criticised by the researchers noticing, that whatever weak was the authorship protection according to Law Lenhema, business Dastar has essentially reduced its level [268]. J. Ginsburg, listing destructive consequences of this judgement, writes, that subordinate instances do not limit its application to the products which have passed in public property, moreover, there was the tradition of its broad interpretation at all excluding any possibility of application of Law Lenhema to breach of law of authorship [269 [270]. Other authoritative scientist, J. Hughes, estimates business Dastar so: «As § 43 (Law Lenhema played a considerable role in all reasonings on mosaic protection, it is impossible to deny, that the decision on business Dastar has done a hole in this

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To mosaic ».

The court position in business Dastar, caused by aspiration to protect product in public property from action of norms of the copyright and any requirements based on them, once again shows, as it is difficult to counterbalance protection of private interests with congenital for system copyright a priority of an easy approach to the cultural blessings. The theory of a scrappy blanket levelled this conflict by means of a presumption of equivalence of norms - of analogues the doctrine of the moral rights only until the given problematics remained a subject of the academic interest.

From the moment of an adoption of law about the rights of authors of products of the fine arts the legal validity new to the American jurisprudence covering two not crossed modes of the moral rights was generated. The statute mode extends the action to the smallest group of authors, but gives them firm legal guarantees both clear ways and protection frames of the broken rights. The absolute numerical majority is forced to be reconciled with those possibilities which give them, as a matter of fact, judicial interpretation by-products, is artificial shown together.

Thus, concerning the Anglo-American right it is possible to speak at least about two scientific approaches to the moral rights, each of which finds partial acknowledgement in the legislation or judiciary practice. The first of them gives reason for necessity of protection of personal interests of the author for that kind in which they are protected in the European jurisprudence, that is by means of a separate category of the rights. The second recognises that for achievement of this purpose enough legal mechanisms traditional for a general law, and loan of legal concepts would be excessive.

There is also the third, radical approach gaining the increasing distribution in Anglo-American scientific thought and at all denying necessity of protection of personal interests of the author. It is based on the analysis modern creative an expert and proves, that a specific set of representations underlying the continental copyright about a phenomenon of authorship and the creativity nature, embodied in a metaphor of "author-father" and "product-son" (keeping the action as Anglo-American researchers ironically notice, even in spite of the fact that «the child grows

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Also leaves the house, and even that the father sells the child »), not to the full

Corresponds to true nature of creativity.

Discussion how an authorship phenomenon reprezentirovan in jurisprudence and the legislation, it has been inspired French poststrukturalistskoj by philosophy and literary criticism, to the greatest degree - Rolana Bart and Michel Foucault's works. So, for R.Bart the figure of the author is not constant - modern representation about the Author-god has developed only during new time. «It is considered, - R.Bart writes, - that the Author bears the book, that is predsushchestvuet to it, thinks, suffers, lives for it, it as precedes the product, as the father to the son». R Bart considers this representation

Simplified, the figure of the author for it disappears behind the "text" depersonalized by the letter which should be deciphered to the reader.

M.Fuko in the report «That such the author?» Considered the author not as the creative person, but first of all as function with which help the culture orders itself in a place and time: «... A name of the author... Provides classification function; such name allows to group a number of texts, to differentiate them, to exclude from their number one and to contrast with their another. Besides, it carries out reduction of texts in defined among themselves

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The relation ».

J. Ginsburg has formulated value of sights of R.Bart and M.Fuko for the American jurisprudence as follows: «the Death of the author», declared in the literary theory, has introduced a syllogism in rhetoric of the copyright: the copyright is a consequence of romantic representation about the author; romantic representation about the author is dead; hence, the copyright also is dead (or should die) ». [271 [272] [273] [274] [275]

Really, earlier it has been shown, that necessity for the moral rights directly depends in the European right from metalegal ideologem which cannot be proved or challenged by means of legal toolkit. Personal character of the moral rights and even the fact of their existence is determined by idea that product is a projection of the author's person and the name, health, honour, advantage and other intangible benefits serves as same its inviolable attribute, as well as. Challenging this idea, we thereby call into question and to attribute the moral rights or, anyway, that widest maintenance which is inclined it the European jurisprudence.

One of those who has paid attention to practical consequences of new philosophical concepts, were P.Jashi and M.Vudmanzi. P.Jashi believes, that the cult of the author underlying the copyright has made impossible that he names «consecutive cooperation» or "coauthorship" (serial collaborations) - creative processing of the general cultural images, capable to proceed throughout many years and decades. It is natural, that if at least one of them is defined enough to receive the status of object of the copyright consecutive coauthorship turns to continuous infringement of the rights of the author. According to JAshi, the mechanism of copyrights fixes some kind of the deformed principle of a priority of works of art, marginalizirujushchego other authors who have appeared later, and denying, that they also can play the important role in incessant process of cultural interaction in which course texts change and improved.

In M.Vudmanzi written as a part of the joint project from P.Jashi's article, the occurrence history of "romantic representation» about the nature of creativity is investigated and affirms, that the further in the past we go deep, the it becomes more obvious collective character of creative process, and with the advent of information networks the border between the reader and the author [276] is erased again - each comment added to the text, placed in the Internet, transforms the reader into the co-author in infinite process of reading and

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Letters.

J. Cohen supports working out of the new concept of the copyright considering the phenomena, described by it as «situatsionnost cultures» and «culture processing». The first of them means, that individuals and their groups are inevitably placed in a certain time and spatial cultural context ("situation"), external in relation to them, but defining - along with individuality as the internal factor - character and results of creative process. Any not isolated individual is the "situational" user of the culture, not capable to step through system of interrelations, values and cultural artefacts of a context in which it is placed. Creativity in that case represents not creation of new and original elements of a context, but their multidimensional processing in the course of dialogical interaction with already existing elements and other situational users. The structure of such interaction, obviously, does not assume the author as exclusive figure because under condition of strong copyrights, in particular moral, culture processing becomes complicated or it appears impossible.

In a word, the romantic figure of the Author-god, free from any external influences, is declared by a number of Anglo-American researchers a myth of rather recent origin. As critics of institute consider, the history says to us, that the mechanism of creative activity inevitably includes

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Loan, copying and change of the stranger for the creation. The modern mechanism of protection of the moral rights leads to that process of intertextual interaction, uses of hints and the direct citations, expressed in a legal plane, as a rule, in the form of the creation of derivative [277 [278] [279] products using ohranosposobnye elements of initial creation, for example, of the character, is blocked by action of the moral rights.

The attention that such standard art practice as reinterpretatsija already existing work, it is deduced by the moral rights from a field of lawful acts is paid. To cite as an example the decision of the French Court of the big instance by which to the theatrical director it has been given up in use of actors of a female directed by play Samjuela Bekketa «In expectation of Godo» enough - the playwright was during lifetime against roles in this play executed women, and the court has considered, that infringement of will of the author should be regarded as an encroachment on its right to inviolability of product.

It would be quite logical to conclude, as well as many Anglo-American commentators given and other situations similar to them do, that the moral rights carry out in such situations function «the rights of private censorship» - an interdiction imposed on the artist and depriving it of freedom in reconsideration of another's work at creation by [280 [281]. Correctness of this decision becomes even more doubtful if to take into consideration, that exactly same question in 1988

Dared in Holland where the court has come to conclusion, that infringement of the moral rights in

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The given case is absent.

It is underlined and other aspect in which the moral rights mismatch the actual relations connected with creation of products of creativity. The copyright in relation to product operates with the term "creation" as positive, pravoobrazujushchim, and "distortion" (or "destruction") - as negative, involving breach of law. Actually, under the statement of some authors, the certificate of change of product, its deconstruction bearing symbolical value to be capable simultaneously the creativity certificate, and the moral rights in attempts to protect the author only stir to it, being based on

Out-of-date representation about a work of art as about result of the creative

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Process, instead of about process as that.

The modern model of regulation does not take in calculation the art experts which have arisen during an epoch of a modernism and further, not located in prokrustovo an "originality" bed. As Most often resulted illustration of this position product «L.H.O.O.Q serves.» Marseilles Djushana, representing not that other, as a cloth «Mona Liza» Leonardo da Vinci with added Dzhokonde moustaches and a beard. Both works represent significant objects of a cultural heritage, however from the point of view of the right the being of picture Djushana consists in rough "distortion" of a cloth of da Vinci. The problematics of the personal non-property rights in this case - only an element of wider scientific discussion which are taking place in Anglo-American scientific thought, namely a question on that, how much archaic system of the copyright corresponds to creative experts of an epoch of a postmodern, in particular, to the creative

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apropriatsii.

That the critical approach to the moral rights has received a wide circulation in the general law countries is at first sight paradoxical enough. The majority of the concepts basing the arguments on the critic of a figure of the author, are relevant first of all for system droit d’auteur, whereas in system copyright, the developed system of the moral rights differing by absence, the author - deeply peripheral figure, important only so far as as it possesses the property control over the product. Moreover, as it has been shown earlier, at legislative level return process - not reduction of a role of the author, and its increase is observed. Here propensity of system copyright again proves to prefer public access to results of intellectual work. The reception of the moral rights in it has led characteristic [282 [283] dualities of their perception - admitting to the law, they are denied by considerable number of theorists.

Summing up to consideration of a question position of the moral rights in the countries of the Anglo-American right, we will note the basic circumstances defining it. First of all, the moral rights are the borrowed legal category. Even in those countries where clearly there is a communication with civil tradition, their reception was carried out within the limits of a general law.

As a result characteristic view for the European jurisprudence on the moral rights as the rights, neottorzhimye from the author and possessing personal character, does not play force of a difference of legal systems of any role from the point of view of their legal regime. It the extremely free approach to a problem of alienation of the moral rights or refusal of them speaks peculiar for all countries of the general of the rights. If in the right of the European countries such possibility is deduced, in the conditions of the law express prohibition, from judicial interpretation or legal fiction in a general law in it there is no necessity more often, and practically all laws on the moral rights suppose full or partial refusal (waiver) from the moral rights. It is possible to tell, that the category of the moral rights has been inherited by Anglo-American laws and orders without accompanying doktrinalnogo the luggage, forcing to adhere to formal identity by the legal nature between the personal and moral rights.

Secondly, as a source of the reception of the moral rights for all jurisdictions interesting us the national law of the European countries, whether it be French or German, and the item 6bis served not to the Bern convention. Such indirect loan has defined two major lines of the moral rights in angloamerikanskom the right. First of all, their list includes only two rights, directly named in the item 6bis - a right of authorship and the right to inviolability of product whereas the right to promulgation and the right to a response, traditionally recognised in continental Europe, will be left in the basket. Besides, the maintenance of the moral rights fixed in statutes also follows the letter of the Bern convention. On the other hand, in the Anglo-American legislation find embodiment and those aspects of the moral rights which are only discussed in the European science, but do not find direct positively-legal reflexion more often. Such are the right of defence from attributed authorship (false atributsii) and the right of defence of product from destruction which will be considered in the following chapter.

At last, a problematics of the moral rights in the majority of the countries,

Adhering to system copyright, throughout almost all XIX century it was indissoluble it is connected with attempt to find the legal mechanisms similar to the moral rights. In the previous chapter it has been shown, that absence of the moral rights in system copyright had the fundamental reasons, and the theory of a scrappy blanket has arisen owing to what to borrow them directly in many respects would mean to cause dysfunction of all mechanism of the copyright constructed on other principles, let alone that in any way it is impossible to name any of offered analogues of the moral rights their high-grade replacement. So, in the American right outside of VARA till now does not acquire protection the simple right of the author to demand instructions of the name. Both the antimonopoly law, and system of claims of a general law give protection only in case of direct assignment of authorship by the third

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The person.

Do not provide comparable level of protection, by a recognition of American authors, and the majority of other norms. Finally, about an inconsistency of the theory of a scrappy blanket speaks the fact of the statute reception of the moral rights, and its modest scale to the European measures became a consequence of the inevitable compromise between values of two systems of the copyright. [284 [285]

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A source: Ovchinnikov Ivan Viktorovich. THE PERSONAL NON-PROPERTY RIGHTS OF THE AUTHOR TO PRODUCTS OF THE SCIENCE, THE LITERATURE AND ART: THE LEGAL NATURE AND The MAINTENANCE. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2016. 2016

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  8. 7.2 Pravotvorchesky character of judicial application and interpretation of civil-law norms in Anglo-American legal system
  9. § 1. Examination and other forms of use of special knowledge in continental and Anglo-American criminal trial.
  10. § 2. An order of appointment and expert investigation in continental and Anglo-American criminal trial.
  11. distinctions in rules of disclosing of proofs: the Anglo-American, continental and transnational approach
  12. Chapter 3. Influence of the Anglo-American doctrine on development of simulated contracts in the Russian Federation
  13. § 3. Protection of the rights and freedom of the patient in Anglo-Saxon system ugo - lovnogo the rights
  14. AKININA polina Sergeevna. LINGVOPRAGMATICHESKY FEATURES of the AMERICAN POLITICAL DISCOURSE (on a material of performances of the US president of Barrack Obamy). The dissertation author's abstract on competition of a scientific degree of a Cand.Phil.Sci. Tver - 2019, 2019
  15. Borunov Artem Borisovich. LINGVOSTILISTICHESKY And COMPOSITE FEATURES of ART PROSE of the AMERICAN WRITER of River N. MITRY. The dissertation AUTHOR'S ABSTRACT on competition of a scientific degree of a Cand.Phil.Sci. Tver - 2015, 2015
  16. RAZHINA IRINA NIKOLAEVNA. PEDAGOGICAL FEATURES of INTERACTION of SCHOOL And the FAMILY In SPIRITUALLY-MORAL EDUCATION of YOUNGER SCHOOLBOYS In polikulturnojobrazovatelnoj to ENVIRONMENT. The dissertation AUTHOR'S ABSTRACT on competition of a scientific degree of the candidate of pedagogical sciences. Pyatigorsk - 2019, 2019