Грось Л.А. К вопросу о соотношении понятий: юридические лица, коммерческие организации, субъекты предпринимательской деятельности, хозяйствующие субъекты

Аннотация: Various interventions into the field of exclusive rights, impairment of copyright and intellectual property rights are provided on different grounds and causes by international legal acts and the legislation of the Russian Federation. However, it seems to be exercised somehow contradictorily in the absence of exact understanding of the legal nature of limitations and encumbrances. The expressions “limitation” and “encumbrance” with regard to exclusive rights are applied inconsistently at the most; there are no coherent references to the properties of limitations and encumbrances; these notions are frequently substituted by wider sense expressions, such as “intervention,” “infringement” and “withdrawal.” In cases when an owner of exclusive rights apparently suffers from certain constraints, based on provisions of law or as a result of a transaction, that is, owing to making of a copyright or license agreement, identification of resale royalty and access rights or as a result of issuance of compulsory license, termination of patent, imposing of payment of patent fees or permission for free use of intellectual property and in other similar cases, but the notations “limitation” and “encumbrance” are not used directly by the legislation; scholars, based on their own scientific considerations, state the facts of identification of limitations or encumbrances of exclusive rights. And there is no single doctrinal approach to legal regulation and theoretical comprehension of the essence of these phenomena. Moreover, since the notion “encumbrance” with regard to exclusive rights is not used at all in any international and domestic regulatory acts, application of the word combination “encumbrance of exclusive rights” is more likely spontaneous and not quite cognizant. The issues of limitation and encumbrance of copyright and allied rights are not touched upon in the Act of the Supreme Court of the Russian Federation. At the same time, from the standpoint of the implemented codification of exclusive rights the approved decision with regard to the scientific comprehension and definition of the general line of regulation of the set of constraints and encumbrances of exclusive rights is extremely important. Contradictions in comprehension of the legal nature of different infringements of exclusive rights, being extremely necessary to be eliminated to implement the system legal approach to cognition, trial in practice and enhancement of the new Section of the Civil Code of the Russian Federation related to intellectual property, seem to be feasible to be solved by applying of scientific interpretation of limitations and encumbrances of property law to the regulation of limitations and encumbrances of exclusive rights. Similar dissemination seems to be possible owing to the fact of the legislator’s acknowledging the positive function of exclusive rights and actual applying of some elements of the structure of right of ownership for the purpose of implementation of this function. In spite of the circumstances determining the differences in the regimes of right of ownership and of exclusive rights, the closeness of the legal nature and functions of the right of ownership of property and intellectual property as well as the possibility to rate these notions even though generalized as absolute rights suggests, on the one hand, that the monopoly of the subject of exclusive right shall not be unlimited, but, on the other hand, that such subject shall be in possession of possibilities comparable with the possibilities of an owner to exercise the right, including the possibility to vest some persons with a part or the entire set of authorities constituting the exclusive right. From the above standpoint, limitations of exclusive rights shall be considered to be the identification or narrowing of the boundaries (limits) of their exercising that shows up as narrowing of the existing permissions, imposing of bans and additional affirmative duties under the law, regulation of the authorized governmental body or local governmental authority for the purpose of protection of the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, of assurance of the defence of the country and the security of the state. In its turn, the rights of the third parties to the results of intellectual labor determined as additional to the main exclusive right and following the main right irrespective the change of its subject shall be considered to be the encumbrance of the relative exclusive right. In other words, encumbrance of exclusive right implies the transfer of some of its constituent authorities to the persons exercising the right retaining the redistributed rights in their potential form with the holder of the rights. On the contrary, limitations of intellectual property right mean withdrawal of certain possibilities of a right holder from the field of permitted conduct. It should be acknowledged that it is required to include the expression “encumbrance” in the field of regulation of exclusive rights as notation of one of manifestations of exercising of exclusive right as well as indication of legal phenomena constraining such right in a definite way but not included in the regime of its limitations.

Abstract: Various interventions into the field of exclusive rights, impairment of copyright and intellectual property rights are provided on different grounds and causes by international legal acts and the legislation of the Russian Federation. However, it seems to be exercised somehow contradictorily in the absence of exact understanding of the legal nature of limitations and encumbrances. The expressions “limitation” and “encumbrance” with regard to exclusive rights are applied inconsistently at the most; there are no coherent references to the properties of limitations and encumbrances; these notions are frequently substituted by wider sense expressions, such as “intervention,” “infringement” and “withdrawal.” In cases when an owner of exclusive rights apparently suffers from certain constraints, based on provisions of law or as a result of a transaction, that is, owing to making of a copyright or license agreement, identification of resale royalty and access rights or as a result of issuance of compulsory license, termination of patent, imposing of payment of patent fees or permission for free use of intellectual property and in other similar cases, but the notations “limitation” and “encumbrance” are not used directly by the legislation; scholars, based on their own scientific considerations, state the facts of identification of limitations or encumbrances of exclusive rights. And there is no single doctrinal approach to legal regulation and theoretical comprehension of the essence of these phenomena. Moreover, since the notion “encumbrance” with regard to exclusive rights is not used at all in any international and domestic regulatory acts, application of the word combination “encumbrance of exclusive rights” is more likely spontaneous and not quite cognizant. The issues of limitation and encumbrance of copyright and allied rights are not touched upon in the Act of the Supreme Court of the Russian Federation. At the same time, from the standpoint of the implemented codification of exclusive rights the approved decision with regard to the scientific comprehension and definition of the general line of regulation of the set of constraints and encumbrances of exclusive rights is extremely important. Contradictions in comprehension of the legal nature of different infringements of exclusive rights, being extremely necessary to be eliminated to implement the system legal approach to cognition, trial in practice and enhancement of the new Section of the Civil Code of the Russian Federation related to intellectual property, seem to be feasible to be solved by applying of scientific interpretation of limitations and encumbrances of property law to the regulation of limitations and encumbrances of exclusive rights. Similar dissemination seems to be possible owing to the fact of the legislator’s acknowledging the positive function of exclusive rights and actual applying of some elements of the structure of right of ownership for the purpose of implementation of this function. In spite of the circumstances determining the differences in the regimes of right of ownership and of exclusive rights, the closeness of the legal nature and functions of the right of ownership of property and intellectual property as well as the possibility to rate these notions even though generalized as absolute rights suggests, on the one hand, that the monopoly of the subject of exclusive right shall not be unlimited, but, on the other hand, that such subject shall be in possession of possibilities comparable with the possibilities of an owner to exercise the right, including the possibility to vest some persons with a part or the entire set of authorities constituting the exclusive right. From the above standpoint, limitations of exclusive rights shall be considered to be the identification or narrowing of the boundaries (limits) of their exercising that shows up as narrowing of the existing permissions, imposing of bans and additional affirmative duties under the law, regulation of the authorized governmental body or local governmental authority for the purpose of protection of the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, of assurance of the defence of the country and the security of the state. In its turn, the rights of the third parties to the results of intellectual labor determined as additional to the main exclusive right and following the main right irrespective the change of its subject shall be considered to be the encumbrance of the relative exclusive right. In other words, encumbrance of exclusive right implies the transfer of some of its constituent authorities to the persons exercising the right retaining the redistributed rights in their potential form with the holder of the rights. On the contrary, limitations of intellectual property right mean withdrawal of certain possibilities of a right holder from the field of permitted conduct. It should be acknowledged that it is required to include the expression “encumbrance” in the field of regulation of exclusive rights as notation of one of manifestations of exercising of exclusive right as well as indication of legal phenomena constraining such right in a definite way but not included in the regime of its limitations.