Луткова О.В. Эволюция охраны фотографических произведений иностранных граждан в авторском праве России

Аннотация: At the beginning of the 20th century the representatives of the legal doctrine expressed opposite opinions about the legal nature of photography. Nowadays the artistic character of the photography is juristically fixed. Up to third quarter of the 19th century legislation of the states did not contain rules of photographer rights. By the end of 19th – beginning 20th century appeared first principles of the national legal regulation photographic works as objects of intellectual property, and also appeared the necessity and ability of creating international protection. Firstly photography appeared in the sphere of protected objects only in the third text (Berlin 1908) of Bern convention of protecting literature and art works. It stimulated the further development of national legal regulation for states-members of Convention (unification process) and for states, not taking part in it (harmonization process). Particularly, in Russia the Copyright law was adopted in 1911, which established exclusive rights of the photographer and spread the protection on the works, the rights on which were owned by the foreigners. Post-revolutionary CIK Decision on fundamentals of copyright law of 1925, reproduced the same volume of photography protection, but the period of protection was reduced and contractual treatment was fixed for the works appeared or existed abroad. The Fundamentals of Copyright law in the USSR and union republics of 1928 added the obligation of the third parties to pay royalty to the author, for using photographic works and also increased the periods of protection insignificantly. So, the protection of foreigner’s right, in whole, remained on the level of 1925 with slight changes. Such system of protection remained in Fundamentals of civil legislation of the USSR and union republics of 1961, but the list of formalities was reduced, the protection period increased up to 10 years; appeared the author’s right for alternation. In 1973 in connection with joining the USSR to the Worldwide convention of copyright law of 1952, RSFSR Civil Code of 1964 (in redaction of 1974) spread the legislative treatment on photographic works, common for all objects of copyright law. Criteria for foreigner’s rights were remained the same. The further statements (Fundamentals of Civil legislation of 1991 and Russian Copyright law of 1993) did not specify formalities, did not limit the protection of photographic works in comparison with other objects, increased the protection period of the photography up to 50 years after author’s death and later up to 70 years. The common way of governing foreigners rights remained. In 1994 Russia adopted the edition of 1971 the Worldwide copyright convention, and in 1995 to Bern Convention of protecting literature and art works of 1886. From 2008, Part 4 of the Russian Civil law is in force, the part is devoted to intellectual property, in which the photographic works have the same protection as the other objects. During the historical development of domestic legislation, the protection of photographic works merged with the protection treatment with other object of copyright and completely corresponds to the international standards of protecting the foreigner’s rights. But there are several questions without answers, which able to create collisions while using the foreign law, the conflicts in interpretation, “limping relations” and other problems connected with protection of foreign rightholders.

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Abstract: At the beginning of the 20th century the representatives of the legal doctrine expressed opposite opinions about the legal nature of photography. Nowadays the artistic character of the photography is juristically fixed. Up to third quarter of the 19th century legislation of the states did not contain rules of photographer rights. By the end of 19th – beginning 20th century appeared first principles of the national legal regulation photographic works as objects of intellectual property, and also appeared the necessity and ability of creating international protection. Firstly photography appeared in the sphere of protected objects only in the third text (Berlin 1908) of Bern convention of protecting literature and art works. It stimulated the further development of national legal regulation for states-members of Convention (unification process) and for states, not taking part in it (harmonization process). Particularly, in Russia the Copyright law was adopted in 1911, which established exclusive rights of the photographer and spread the protection on the works, the rights on which were owned by the foreigners. Post-revolutionary CIK Decision on fundamentals of copyright law of 1925, reproduced the same volume of photography protection, but the period of protection was reduced and contractual treatment was fixed for the works appeared or existed abroad. The Fundamentals of Copyright law in the USSR and union republics of 1928 added the obligation of the third parties to pay royalty to the author, for using photographic works and also increased the periods of protection insignificantly. So, the protection of foreigner’s right, in whole, remained on the level of 1925 with slight changes. Such system of protection remained in Fundamentals of civil legislation of the USSR and union republics of 1961, but the list of formalities was reduced, the protection period increased up to 10 years; appeared the author’s right for alternation. In 1973 in connection with joining the USSR to the Worldwide convention of copyright law of 1952, RSFSR Civil Code of 1964 (in redaction of 1974) spread the legislative treatment on photographic works, common for all objects of copyright law. Criteria for foreigner’s rights were remained the same. The further statements (Fundamentals of Civil legislation of 1991 and Russian Copyright law of 1993) did not specify formalities, did not limit the protection of photographic works in comparison with other objects, increased the protection period of the photography up to 50 years after author’s death and later up to 70 years. The common way of governing foreigners rights remained. In 1994 Russia adopted the edition of 1971 the Worldwide copyright convention, and in 1995 to Bern Convention of protecting literature and art works of 1886. From 2008, Part 4 of the Russian Civil law is in force, the part is devoted to intellectual property, in which the photographic works have the same protection as the other objects. During the historical development of domestic legislation, the protection of photographic works merged with the protection treatment with other object of copyright and completely corresponds to the international standards of protecting the foreigner’s rights. But there are several questions without answers, which able to create collisions while using the foreign law, the conflicts in interpretation, “limping relations” and other problems connected with protection of foreign rightholders.

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