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§ 1. The Right of authorship and the right to a name

The right of authorship and the right to a name represent non-property competences of the author which urged to make out an accessory to the author of concrete product. In this quality their major importance consists in an individualization not the creator, and creation belonging to it, its fastening to the corresponding author in public consciousness.

Item 1 of item 1265 GK the Russian Federation defines a right of authorship as the right to admit the author of product, and the right to a name - as the right to use or resolve product use under the name, under an assumed name (pseudonym) or without name instructions, that is anonymously. Authorship breach of law can be expressed, first of all, in neukazanii or negation of authorship concerning product or plagiarism, that is assignment of authorship to product by the announcement of the author of another's product, release of another's product under the name, the edition under the name of the product created in the co-authorship with other persons, without instructions of their name [286 [287]. The instructions should be executed so that there were no doubts in a product accessory to its valid author, in particular, the instructions of a name of the author of pictures in the general list published on the title page of the book, do not allow to define, who is the author of a concrete picture, and

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Testifies to authorship breach of law.

To demand a designation of the authorship korrespondiruet the active duty of the third parties in each case of use of product to specify to the right of the author its author. So, item 1274 GK the Russian Federation demands instructions of a name of the author at each case of free use of product in the information, scientific, educational or cultural purposes, and item 1275 GK the Russian Federation provides the same duty at free use of product by reproduction.

The right of authorship means name instructions at any use irrespective of, whether directly such duty by the law with reference to concrete circumstances is mentioned or not - it is supposed item 1265 GK the Russian Federation. The exception becomes the legislator only for some cases of free use. Directly fixing compulsion of instructions a name of the author in two already mentioned articles, he does not mention it in other norms of the law devoted to restriction of the exclusive right (item 1273 and 1276-1279 GK the Russian Federation). Here absence of the reservation «with obligatory instructions of a name of the author» should be treated as absence of a duty.

Besides, more often this duty possesses passive character and is reduced to preservation of the information on the copyright (item 1300 GK the Russian Federation), identifying the author. In some situations to specify full authorship would be trudnoosushchestvimo (public execution musical compositions by means of radio) [288], and it is necessary to be guided by principles of conscientiousness, a rationality and justice.

Breach of law on a name, unlike authorship breach of law, constitutes non-observance of that way of a designation of authorship which was selected for itself by the author, thus authorship assignment can and not have a place. So, the publisher can break the right to an author's name, having published the book under an original name of the author using a pseudonym or preferring to remain anonymous.

On the other hand, authorship breach of law can take place, but is not right on an author's name, for example, at direct negation of authorship to concrete creation out of product use.

The legislation of Russia traditionally allocates the right to a name as the independent right. It is necessary to tell, that it as a whole is atypical for other countries of a continental legal family recognising a right of authorship and the right to an author's name by displays of one right. Such mechanism is used in item 13 of the German Copyright law establishing, that the author «has the right to a recognition of the authorship concerning product. He has the right to solve, whether product will carry instructions of authorship and what instructions will be used». The first offer, agrees to German commentators, offers a wide and general definition of a right of authorship, and the second specifies in specificity of its realisation [289].

In the French legislation (item L. 121-1 Codes of intellectual property) the right of authorship (droit a la paternite) consists of two subcompetences - the rights to respect of the name (droit au respect de son nom) and the rights to respect of the status (droit au respect de sa qualite), and the maintenance of the second of them mismatches the maintenance of a right of authorship in Russia.

Extreme laconicism which the French legislator adheres, does not promote clearness of the maintenance of the moral rights, and the original sense of the formulation «the right to respect of the status» is discussed in the French science. According to the conventional point of view, it should be treated at least in two aspects: first, as the right to demand a recognition of the fact of existence of the author, that is the fact of authorship [290 [291] [292], secondly, as the right of the author to detail the social status by instructions of a post, ranks, trades and to interfere with underestimation of the role in product creation

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By, for example, instructions of the unique author as the co-author.

The opinion on inexpediency of artificial division of a right of authorship in two repeatedly expressed and in the Soviet science. V.I.Serebrovsky wrote, that though in separate rare cases and possibility of breach of law on an author's name without authorship breach of law is not excluded, there are no bases

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To an establishment of two independent kinds of the rights.

Century of M. G ordon also used terms «the right to an author's name» and «the right to authorship» as identical, believing, that the right to demand a designation of a name of the author of product in itself already assumes the right to demand that this designation has been made in that kind in what it is wanted by the author.

B.S.Antimonov, E.A.Flejshits held similar opinion and allocated two competences as a part of the right to an author's name: to select a way of a designation of the author (under the name, under a pseudonym and anonymously) and to admit and be called as the author of product in case of product use by other persons [293 [294] [295] [296]. Supported them and V.I.Koretsky, with that difference, that the granted rights he named the competences connected with authorship

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On product.

The attention not only that fact attracts, that in the specified works set of competences on identification of the author was considered as the uniform right, but also that this right was called, depending on preferences of the concrete researcher the right to an author's name the right to authorship or an authorship designation. To spend a dividing line between them it is difficult enough even at semantic level.

Unfortunately, the legislator has gone on other way, being guided dominating opinion according to which the right of authorship and the right to a name do not coincide among themselves on volume and differ with character of prisoners in them of possibilities. But unless it is impossible to apply the same argument to the right maintenance

Properties, the exclusive right to result of intellectual activity or any other complex right - competences in their structure also possess relative independence and have features in the realisation mechanism? The right to a name as V.A.Hohlov fairly notices, substantially is the form of realisation of a right of authorship [297].

Would be more correct, in our opinion, to speak about a design of the uniform right of authorship which maintenance breaks up to positive and negative elements. The negative element has strictly guarding character and consists in the right of the author to demand from other persons of instructions of the fact of authorship, a recognition of an accessory of creation to the founder. The positive element of a right of authorship gives the chance to the founder to choose independent actions how this duty will be executed at product use, in other words, as will be made it atributsija in public consciousness: by means of instructions of a name, a pseudonym or anonymously.

From this point of view the recognition of the person the author and correct instructions of his name is formed by two parties of the same phenomenon - duties to recognise authorship. Distinction between them only that for the third parties which are not using product, it logically only also can consist in passive abstention from assignment or authorship negation, and for the person who are carrying out use, it is transformed to a duty of active type and consequently can be not only is not executed, but also executed by inadequate image, with infringement of the way of a designation of authorship chosen by the author. Specificity of results of the intellectual activity, distinguishing them from objects of other absolute powers, just also consists that they can be physically used not only the legal owner, but also potentially unlimited circle of subjects. The active duty on an authorship designation arises not earlier than acts of will of the subject on product use.

It is necessary to notice, as definition of the right to the author's name given in item 1 of item 1265 GK the Russian Federation and without changes passed in her from item 15 of the Law of the Russian Federation about the copyright, suffers from terminological uncertainty. Questions the formula «the right to use or resolve use» first of all causes. It is possible to track a direct genetic relation between the given formulation and the text of item 479 GK RSFSR 1964 saying, that the author posesses the right to publication, reproduction and distribution of the product by all ways permitted by the law under the name, under a conditional name (pseudonym) or without a name designation (anonymously).

If to spend mental generalisation of the property rights listed in last article and to replace with their words «the right to use» as it does also our legislation we will get practically literal definition of the driver's licence to an author's name under item 1265 GK the Russian Federation. But basic difference between two these norms consists that item 479 GK RSFSR, certainly, assigned 1964 to the author not only the right to a name, but also property rights, reducing them in one offer whereas modern edition, in essence reproducing it, means is only right on a name. It leads to a mismatch of positions of item 1. Item 1265 GK the Russian Federation, the leader at close interpretation to that for the author even after exclusive right alienation the inalienable right remains to use or resolve product use under the name chosen by it.

It is represented obvious, that at realisation of competence to a name the author at all does not use itself and the more so does not resolve product use under the name chosen by it to other persons - all these actions concern sphere of property rights. In the given relation the text of item 1 of item 1265 GK the Russian Federation is too wide under the maintenance, let alone that the right «to resolve use» terminologically the Russian Federation in which force the author or transfers the exclusive right to product (item 1285 GK the Russian Federation) mismatches other norms GK, or gives the right of its use (item 1286 GK the Russian Federation). At the same time it is too narrow and does not cover those cases when to specify an author's name it is necessary, but use is thus carried out not by the author, and the third party and without any author's consent (item 1274 GK the Russian Federation and item 1275 GK the Russian Federation).

It is necessary to recognise that the maintenance of this right consists only in its possibility to detail one concrete condition product use, namely a way of a designation of authorship. Only to it article text also should be limited. In this connection the following edition of item 1 of item 1265 GK the Russian Federation is offered: «the Right of authorship - the right to admit the author of product and the right of the author to a name - the right to demand a designation of the authorship the chosen author in the way (by means of instructions of a name, a pseudonym or without name instructions, that is anonymously) at any use of product, except for cases when such use is supposed by the law without an authorship designation, are inaliennable and inexpressible, including by transfer to other person or transition to it of the exclusive right to product and by granting to other person of the right of use of product. Refusal of these rights is insignificant».

Norms of item 1274 GK the Russian Federation and item 1275 GK the Russian Federation seem not absolutely successful also, obliging to specify a name of the author. Actually it is a question, certainly, not of a name, and about that way of a designation of authorship which is chosen by the author. Judiciary practice fairly believes, that the requirement about instructions of a name of the author in item 1274 GK the Russian Federation is caused by realisation of the right belonging to it on a name, and denies requirements of the author to specify the original name if at promulgation it had been used a pseudonym [298]. If the author has preferred to leave the product anonymous at use the third party should is obliged to specify a name of the author, but also is obliged it not to specify.

Other problem aspect of the maintenance of the right of authorship, demanding the detailed analysis, consists in possibility of the author to counteract false atributsii - to attributing to it of authorship of product which has been actually created by another. Inclusion of counteraction false atributsii in structure of a right of authorship - rather recent phenomenon, characteristic basically for enough young legislation on the moral rights of the Anglo-American countries.

So, in the item 195AC-195AH Australian MRA it is in detail painted

The maintenance of the right of defence from false atributsii (right not to have authorship of a work falsely attributed) which as a whole is reduced to two competences: 1) to the right of the author to forbid putting down of a name of other person on the product and by that deception concerning authorship of product; 2) the right to that in case of modification of product by the third party they did not associate with the initial author and were not attributed to it. Its maintenance, thus, does not fall outside the limits a right of authorship in the continental laws and orders and represents

Reformulated in the independent right will lock on plagiarism.

Position of the right to counteraction false atributsii in the English and American right, possessing lines similar to the Australian law, cardinally differs from it on the being. According to VARA, the author has the right to prevent use of the author's name concerning products of the fine arts which he did not create (17 U.S.C. § 106A (a) (B)) and also to make the same actions concerning the product if it has been deformed by the changes harming to its reputation (17 U.S.C. § 106A (a) (2)). Owing to item 1 of item 84 CDPA the author has the right to that literary, drama, the piece of music or fine arts product have not been is false attributed to it as to the author.

Possibility to interfere with attributing to itself of another's product, given to the author, logically follows from history of evolution of the moral rights in an English-Saxon legal family. The tort passing off [299] - introduction of the buyer in error concerning a source of an origin of the goods by means of its sale under an assumed name or the trade mark was the mechanism traditionally used in a general law for protection against false instructions of authorship. Business V. News of the World Ltd was one of axiomatic lawsuits in whom such way of protection has been applied. 1972 in which result attributing of authorship of newspaper article [300] has been challenged. Positions laws actually were no more than result of codification of the given tort [301], instead of the reception of the European tradition of the moral rights.

In civil tradition the problem of expansion of the maintenance of a right of authorship and inclusion in it of competence to protection against authorship attributing has not received till now the unequivocal permission. This problematics is not new - in a domestic science still A.A.Simolin paid attention that if personal interests of the author can be broken when its product will be published under an assumed name infringement of personal interests will take place and in case of attributing of authorship [302]. During the Soviet period J.P.Tabutsadze defining a right of authorship as the right to admit by the creator only of the products [303 [304] was the active supporter of this approach. V.L.Suhoverhy also noticed, that norms of the copyright, not supposing authorship attributing to other person, «to a certain extent interfere with formation of the deformed representation about is intellectual-creative individuality of the citizen».

In modern Russian and in the European right there are two groups of positions concerning the given question. One part of jurists is inclined to recognise the right of defence from authorship attributing by one of elements of a right of authorship [305]. Other researchers, in particular, O.Pronin [306], N.V.Zernin [307], V.A.Udalkin [308], take of an opposite position, considering, that it cannot concern copyrights in strict sense of a word.

In our opinion, the permission of the given question directly depends on the decision of a question on object of the granted right, otherwise, from, whether ourselves consider the moral rights of the author as a subgroup of the personal non-property rights or we carry them to the intellectual rights to product. In the first case for similar expansion of a right of authorship as it is represented, there are no logic obstacles: in this case it is possible to consider it as a concrete definition obshchegrazhdanskih individual rights to a name and honour of the citizen which can really be broken by attributing to the person of another's product. However earlier we had been drew a conclusion, that the moral rights of the author should be carried to the rights sui generis on product as they arise, are carried out and protected strictly concerning concrete creation. From this point of view the right of defence from authorship attributing would be competence with the absent object arising on the basis of the nonexistent juridical fact as it does not arise in connection with the creativity certificate, and is immanently inherent in the person. Here distinction between the personal non-property and moral rights is most obviously shown.

Certainly, the person can submit the claim about a recognition of that it is not the author of product such, and similar affairs are familiar to our judiciary practice [309]. A known case such which was repeatedly resulted in the Soviet literature, is dispute between publishing house Detgiz and artist D.Daranom. The book of writer A.Gaydar has been published by publishing house with the deformed illustrations of the artist that has led to the claim of the last about an exception of its authorship to them. The court has satisfied the claim and has obliged publishing house to specify authorship of the artist only concerning those drawings which correspond to the original [310]. However as the basis of such claims the encroachment on obshchegrazhdanskoe the right to a name should serve, in our opinion. On the other hand, if the original author wishes to exclude the by-stander from among co-authors protection is come under by a right of authorship.

To personal, instead of to the moral rights, carry the right to counteract false atributsii and in the European laws and orders. So, in France until recently there were disagreements of on what basis it is necessary to give protection to the author in similar situations. In the decision from 2000 the Court of review of France has begun formation of uniform judiciary practice, having specified, that sale of the picture which are not neither a copy, nor direct imitation of a picture of other author, but with its false signature, encroaches not on its moral right, and to the personal right. As to German jurisprudence communication with concrete product admits it

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The fundamental characteristic of a right of authorship.

In the domestic literature other individual rights closely connected with a right of authorship have been offered also. One of them is the right to assignment of a name of the author or the special name (nomination). So, V.A.Belov writes, that they should to consider select and appropriate the individual right of the subject to this or that person or object a name, or other special name (name) and to forbid all other persons to deform the given name. Among the rights of this sort named V.A.Belovym, there is also a right of the author of product of creativity «to appropriate the name to the product (at least and not original) to change already appropriated name to replace it or at all to refuse name use». Allocates the right to the author's name

Products and E.A.Pavlova [311 [312] [313] [314] [315]. To V.G.Kamyshevym the personal non-property right of the author to product dedication was offered also to the certain person as such dedication is often connected with a creative plan of the author and helps to understand its motives. Attempts similar atomizatsii the personal non-property rights seem us excessive. Both the title, and author's dedication are elements of product and in this quality they are already protected by the moral rights, in particular the right to inviolability of product.

In summary we will notice, that to a right of authorship the role «the first among equal», the bases for occurrence of all complex of copyrights that speaks not so much legal features distinguishing it from other moral rights, how many that function which it urged to carry out is often enough attributed. The right of authorship guarantees identity of actual and legal figures of the author and the validity of the legal title of the primary legal owner.

Last circumstance is very important for stability of regulation of relations concerning results of creative activity because absence of a registration order of occurrence of copyrights gives to a right of authorship pravopodtverzhdajushchuju function: it testifies that the person making alienation of the exclusive right or according a right of use, is the valid author authorised on fulfilment of such transactions.

The real weight of a right of authorship in turn depends on that, how much this pravopodtverzhdajushchy the aspect providing identity of the formal and valid author, is actual within the limits of concrete system of the copyright. Most a bright example of this statement the approach of systems droit d’auteur and copyright to a question on an admissibility of practice of use of creative activity of the "writers-phantoms" creating for compensation of product which authorship will associate in public consciousness with their customer, instead of can serve as the original founder remaining to unknown persons.

In the Anglo-American countries attraction of work of "writers-phantoms" always was not only extended enough in all branches of creativity, but also absolutely lawful - refusal of the claims based on the fact of authorship, was one of standard treaty provisions of the author's order. Moreover, unique effective means, only and to force the counterpart of the author to instructions of its authorship, direct inclusion of a corresponding duty in treaty provisions was capable. In this respect value of authorship as the blessings corresponded to the extremely modest and minor position occupied with the author, and answered the general valuable bases of system copyright. The situation has not too changed and with the reception of the moral rights, in view of intentionally left opening - possibilities of refusal of them, present at a positive law practically all Anglo-American countries.

We will find a return example of the relation to authorship in the European countries where use of work of "writers-phantoms" concerns the phenomena blamed by the law that proves to be true not so much even a principle of inalienability of the moral rights as that, - was already said, that it successfully manages by means of system of flexible judicial interpretations, - how many consecutive and tough policy of the judicial authority refusing broad"to understand its maintenance with reference to a right of authorship. Roots of a dichotomy of two systems of the copyright, going back to argument about identity of product and sphere of the author's person, are shown in this case most visually.

In the middle of XIX century the French right did not test difficulties in a recognition that of the fact, that the right of authorship is capable to be transferred in a contractual order, not showing, thus, any differences from system copyright. In the well-known litigation which has burst in 1858 between Alexander Duma-senior and Ogjustom the Poppy concerning authorship of the novel «Three musketeers», Ogjust the Poppy demanded a recognition its co-author A.Duma, but the court has supported the last, declaring, that the name of the author or the co-author of literary or scientific work again in relation to these works and possesses properties of a pure private property: it can be object of the agreement, and its instructions can be lowered under the agreement of parties [316]. Refusal of this presumption became possible only with paradigmalnym jump in which course product has passed from economic measurement in personal, and a right of authorship, along with other moral rights, has got modern value.

At the same time qualification of a phenomenon of "writers-phantoms" from the point of view of the law is not reflected at all in its real position, and for the system countries

droit d’auteur this phenomenon is not less characteristic at all. Literary projects to which the whole group of hired authors writes the books published by publishing house under one name, real or fictitious, it is treated in literary criticism as process if not positive, then inevitable, connected with tectonic shifts in art processes and acquisition by culture of mass character: «author's subjectivity which not simply is present, but dominates in any forms of a work of art, will organise the text, generates its art integrity in

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To the popular literature, it is washed away and levelled ».

The collective literary project as a variant of author's strategy, thus, is so claimed by a society, as well as use of an author's pseudonym. The copyright as juristic institution faces to a simple choice: to recognise this objective and socially admissible phenomenon as sphere of the relations which are coming under to regulation as it is done by system copyright, or to deduce it in «a grey zone» by means of an interdiction for alienation of a right of authorship.

It is interesting to notice thereupon, that kommertsializatsija the rights to a name has received some development in the Federal act from December, 30th, 2012 № 302 FZ by which the Russian Federation have been entered into item 4 of item 19 GK paragraph 2 saying, that the name of the physical person or its pseudonym can be used with the consent of this person other persons in their creative activity, enterprise or other economic activities in the ways excluding deception of the third parties concerning identity of citizens, and also excluding misuse of right in other forms.

The fact of its occurrence testifies that the name and a pseudonym becomes de jure oborotosposobnym. E.P.Gavrilov estimates this norm as revolution. Actually given norm fixes possibility of fulfilment of transactions admitting still by M.M.Agarkov with the right to a name in that measure in what they do not mention a public order and do not lead to infringement of identity [317 [318]

Individualities with by itself. Even if to extend this norm to an author's name, the reservation on identity excludes possibility of its application concerning "writers-phantoms".

In a context told it is represented as a whole to V.A.Hohlova proved a position, considering, that corresponding legitimation as legal phenomenon [319 [320] [321] is required to activity of literary time-workers. At the same time most obvious of them - a recognition for the author of possibility to transfer a right of authorship - it is equivalent to direct infringement fundamental to representation about its (rights) of inalienability. Besides, practice of the Anglo-American countries shows, that to the author who is not possessing sufficient trunk-call force, will be imposed dogovory with the corresponding reservation.

More graceful variant of the decision of this problem is offered in the French jurisprudence considering, that contractual conditions according to which the author undertakes not to open the authorship, it is not necessary to treat as authorship disclaimer. On the contrary, this duty should be regarded as its realisation owing to that it is very difficult to spend a differentiating line between the author realising the right to anonymity, and the author incurring the obligation not to disclose the authorship.

Within the limits of this design the author, in effect, is not connected by a condition about nondisclosure of original authorship and can change at any moment a way of realisation of the right, declaring the present name, but this condition is not also insignificant as lays in the tideway of realisation by the author of the moral right. The similar variant is offered in the literature S.A.Sudarikovym believing that there are no obstacles for making agreement in which force the customer pays geteronimu the single sum if that expresses desire to publish product anonymously, and the customer - under an own name and that geteronim will refuse claims on the award at product publication.

In spite of the fact that this system of the argument is vulnerable enough (the consent of the author to anonymity in any way does not belittle illegitimacy of assignment of authorship that who will be designated in a role of the "legal" author), it is hardly probable not the unique way, allowing to consiliate an existing mode of protection of a right of authorship with practice of attraction of work of "writers-phantoms".

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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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More on topic § 1. The Right of authorship and the right to a name:

  1. Kontsept hybrid authorship (an artificial intellect unit as the co-author of the person in creation of results of intellectual activity)
  2. influence of an order of a discourse on the creative competence PR - a discourse: the right to authorship
  3. Kontsept "disappearing" (zero) authorship
  4. § 2. The personal non-property rights of the author.
  5. the creative competence of a PR-discourse
  6. criteria of the creative contribution of a unit of an artificial intellect in product creation
  7. Основные publications on a theme диссертации
  8. the list of the works published on a theme of the dissertation
  9. criminal trespasses on inventor's and patent rights
  10. § 2. The right to inviolability of product
  11. Kontsept office product (an artificial intellect unit as the hired worker creating results of intellectual activity, prezjumiruemye and positioned as office product)
  12. subjects of copyrights in the French author's legislation and the doctrine. Rights of the author: moral and property rights, the following right.