Chief editor’s column
Interview of the issue
Topic of the issue
M.A. Rozhkova, A.V. Ersh, O.V. Isaeva The Concept of “Quoting” in the Modern Era The case law on the application of the Civil Code provisions related to
quoting contains two directly opposite views. On the one hand, the
courts proceed from a literal, etymological understanding of quotation,
assessing it as a literal borrowing of some parts of another’s text.
On the other hand, they allow a broad interpretation which leads to
the recognition that works other than literary ones may be quoted.
This state of things is obviously not conducive to the formation
of correct and uniform practice in intellectual property disputes.
The article assesses quotation as a method of free use of only
literary works through the prism of differences between quotation
and illustration.
It also raises questions about the legal nature of other forms of
interaction of works that are often mistakenly regarded as quotation.
A brief analysis of court practice on the permissible scope of
quotation is given.
Keywords:
quotation, copyright, quote, permissible quotation, scope of quotation, protection of intellectual property rights, intellectual property, excessive quotation
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A.P. Sergeev Recovery of Damages Caused by Illegal Decisions of Rospatent The legal nature of Rospatent’s relations with copyright holders,
applicants and other persons is analysed, as well as the issues of
reimbursement of expenses borne in courts and at the stage of
administrative proceedings in Rospatent. The conditions of liability
of the State for the harm caused by Rospatent are considered: the
concept of harm, wrongfulness, causation and guilt.
Keywords:
Rospatent, causing harm, court expenses, losses, wrongfulness, causation, guilt
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N.V. Ivanov Peculiarities of Liability of the Information Intermediary for Violation of an Exclusive Right The article examines the guilt of an information intermediary as a
condition of his civil liability for a violation of an exclusive right, as
well as the circumstances provided by law that exclude this liability.
The expediency of unification of rules distributing the burden of
proof of legality or illegality of using the intellectual property object
between the sender (right holder) and the addressee (site owner).
The necessity of establishing the presumption of information
intermediary awareness about the violation of the exclusive right in a
situation when it follows from the claim sent by the right holder that
the intellectual property object has been used in an altered form is
proved, and the need for establishing for information intermediaries
a particular duty to carry out automatic preventive moderation,
the failure of which should indicate the guilt of the information
intermediary is substantiated.
Keywords:
intellectual property, exclusive right, civil liability, liability for violation of an exclusive right, liability of an information intermediary, guilt as a precondition for civil liability, models of responsibility of an information intermediary
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I.V. Shevelev, T.S. Nikiforova Whom the Rights to Software Belong to? The article analyses the current legislation as regards the identification
of persons to whom the rights to a computer programme should
belong: whether they are authors, copyright holders or users? It
emphasises the development of a part of a software product as a
significant attribute for determining its authorship. The composition
of the software development project team is considered, and it is analysed which of these roles can lead to the emergence of
authorship for a computer programme created within the project.
The question of whether task trackers and other automated
project management systems can replace job descriptions for the
purposes of confirming the official status of the programme is being
investigated. In addition, examples of automatic programming tools
are presented and the question of whether the user of such software
tools can be the author of a computer programme created with their
help is considered.
Keywords:
author of the software, copyright holder of the software, work made for hire, software user, auto-programming
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B.E. Semenyuta On The Qualification of Computer Programmes as Composite Works In a computer programme development it is absolutely normal not
to create a programme from scratch. During the development third
party’s solutions (software libraries) are often used. Such use has
received its legal assessment in the Decree of the Constitutional Court
of 16 June 2022 No. 25-P, as well as in the acts of arbitrazh courts.
In so doing, courts interpreted it with equating the programme with
a composite work. The article is devoted to the analysis of the notion
“composite work” under Russian law in the context of a computer
programme, the relations with the notions “complex work” and
“derivative work”. It is concluded that there are no sufficient grounds
for qualifying a computer programme as composite, complex or
derivative work when another programme is used. The article offers
various ways out of the situation.
Keywords:
software, collective work, complex work, derivative work, software library
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A.G. Sergo UAVs and Copyright: On the Issue of Using “Real Estate” to Create Results of Intellectual Activity The active involvement of unmanned aerial vehicles (UAV) in civil
turnover poses new questions for the law. This article is devoted
to an overview of the legal problems that arise when using drones,
including in the field of intellectual property rights. The author arrives
to the conclusion that works created using UAV should be treated as
objects of copyright.
Keywords:
drone, copter, unmanned aerial vehicle, model aircraft, UAV, unmanned aerial system (UAS), intellectual property, copyright
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Discussion Board
A.V. Polyakov Freedom and Justice in Legal Reasoning It is a response to the article by V. A. Belov and O. Yu. Skvortsov
«Justice vs Freedom = Law: Antagonistic Contradiction and its
Solution» (Statute [Zakon]. 2023. No. 2–3). The author examines
positive and negative aspects of the concept of justice, emphasising
its natural law orientation and ideological proximity to the school
of «revived natural law». Another positive aspect of the proposed
concept is the recognition of human freedom and justice as
inalienable attributes of law. The very idea of opposing justice to
freedom is regarded as controversial. The author argues that such
opposition does not make sense, because it does not allow to think
without contradictions of the very notion of freedom. The «narrow»,
socio-centrist interpretation of justice has no satisfactory theoretical
justification and must be reformatted.
The author offers for discussion his own concept of justice in law
based on a communicative approach, interactive methodology and
the principle of mutual legal recognition. Arguments in support of this view on the nature of justice are derived not only from
philosophical and sociological research but also from evolutionary
theory, biology and neuroscience. The basic idea is to justify the
existence of two fundamental traditional values that underlie
human conceptions of justice: the value of the human person
and the value of society. Their optimal coexistence is possible
only on the basis of the realisation of the principle of mutual legal
recognition and the mutual rights and obligations arising from it. In
the realisation of this principle lies the idea of justice. Law is born
not in a struggle between justice and freedom, but in a struggle for
justice and freedom.
Keywords:
justice, liberty, private law, social justice, traditional values, natural law, principle of mutual recognition, dialogue, human rights and freedoms, evolutionary theory, tribalism, neuroscience
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A.M. Molodkin Bringing a Lawyer-Consultant to Subsidiary Liability The article analyses the possibility of making a legal consultant liable
in case of bankruptcy. Criteria were proposed for recognising him
as a controlling debtor on the basis of a special status - a carrier of
professional knowledge, which is the reason for the need to create
a standard for the provision of legal assistance and the introduction
of increased liability for actions both against the client in violation of
the fiduciary relations they developed de facto between themselves,
and against third parties.
Keywords:
subsidiary liability, bankruptcy, person controlling the debtor, lawyer, legal consultant
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Legal Chronicle In the May Chronicle, experts comment on the adoption of a new law regulating the military
conscription of citizens and restricting the rights of those who ignored summons; the
decision of the Constitutional Court, expanding the liability for a cartel agreement; institute
of pre-audit analysis within the framework of tax control.
Keywords:
conscription, summons, restrictions on the rights of conscripts, criminal liability for cartel conspiracy, anti-cartel legislation, pre-audit analysis, tax control
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Theory and practice
D.V. Vinnitsky, D.A. Kurochkin Legal Technique and Logical Links in the Decisions of the RF Constitutional Court on Tax Matters: A Conceptual Analysis Authors raise questions of identifying methods for interpreting
legislation by the Court when assessing the grounds for a claim
to the Court and making a decision on it.
Specific examples are used to examine the presence in selected
decisions of the Court of unconfirmed or non-systemic references
to its previous practice, as well as conclusions about the balance
of public and private interests and a comprehensive assessment
of the nature of the issues posed to the Court.
As one of the issues, the authors single out the violation of the
logical coherence of certain areas of judicial practice and the
thematic connection of the Court’s decisions with those earlier
decisions that are regarded as «precedents» and are referred to.
The article concludes that in the current practice of the Court
insufficient attention is paid to legal techniques designed to
ensure clarity and certainty of legal positions on the most pressing
issues of taxation. In general, the inconsistency of references
to the previous practice of the Court impedes a professional
discussion of the relevant decisions (containing such defects)
and sometimes makes it impossible to use them in law-making
process and law doctrine.
Keywords:
tax, tax law, legal technique in tax law, case law on tax matters, the jurisdiction of Constitutional Courts
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M.A. Tserkovnikov On the Competition of Creditors in Obligations to Transfer an Individually Defined Thing in the Event of a Double Sale or Lease The article is devoted to the competition of creditors who claim
the same thing of the debtor due to different obligations. This
happens, for example, with “double” sales or promises to lease
the same property, which are made by one seller (lessor) in relation
to different buyers (lessee). The author shows different options for
solving the problem of such competition in the laws of France and
Russia.
Keywords:
double sale, double rent, competition of creditors, the obligation to transfer an individually defined thing, performance in kind, broadcast, registration, Article 398 of the Civil Code of the Russian Federation
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V.G. Domshenko Pre-Trial Procedure for Settling a Dispute on a Class Action: In Search of an Optimal Model The article discusses some differences between the Code of
Arbitrazh Procedure and the Code of Civil Procedure as regards the compliance with the pre-trial procedure for settling claims
in a class action. The author comes to the conclusion that the
observance of such a procedure should not be a necessary
condition for the consideration of a class action or returning
the claim or leaving it without consideration. The absence in the
Code of Civil Procedure of a requirement to observe pre-trial
procedure for class actions calls for changes and its unification
in this regard with the provisions of the Code of Arbitrazh
Procedure. The author draws attention to the lack of grounds
for recovering a fine from the defendant in accordance with the
Consumer Right Protection Law in case of non-compliance by
the consumers with the claim procedure before filing a class
action.
Keywords:
class action, claim procedure, leaving claim without consideration, consumer fine, civil and arbitrazh process
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D.D. Dzhumagulov Conclusion of a Contract by Performing IMPLICATIVE Actions on the Internet In this article, the author discusses the general provisions of
implicative actions and comes to the conclusion that their use in civil
turnover increases with the development of technical means that
involve interaction with the object without the direct participation of
an individual in the transaction process. Further, the author analyses
the implicative actions on the Internet and proposes to regulate
them by gradually complicating the usual pattern of behavior and
the need to take into account the set of the implicative actions, while
such a set of actions may be different depending on the degree of
significance of the subject of the contract.
Keywords:
implicative actions, form of transaction, expression of will, conclusion of an agreement on the Internet
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E.N. Melnikova Legal Qualification of a Machine Learning Model Based on a Technical Analysis of Such Learning Machine learning technologies are at the heart of artificial
intelligence applications, ranging from use in the military to
household assistants. The result of machine learning as a technical
process is the creation of models that are able to produce a
forecast of some degree of accuracy, on the basis of which
people make decisions, and artificial intelligence systems perform actions. The machine learning model is a new phenomenon with
an indefinite legal regime, however, regarding the creation and use
of models, legal relations are formed, contracts are concluded,
economic benefits are created during machine learning: all this
needs legal qualification. Since inductive development methods
are used to create models, machine learning has an atypical
structure compared to a conventional computer program, which
makes it difficult to determine the legal regime of the model and
the legal consequences of its creation and operational application.
The article presents an element-by-element technical analysis of
machine learning as a process and a model as its result. On this
basis the legal nature of the model is determined at all stages of
its life cycle, protected elements of the structure are indicated;
the legal significance of machine learning methods for the legal qualification of models is analysed, the character of training
data external to the model is substantiated, and a benefit derived
from training data in the form of model parameters is indicated.
The conducted research is the basis for further analysis of legal
relations that develop regarding the creation and use of artificial
intelligence applications.
Keywords:
artificial intelligence, machine learning, legal nature of the model, legal protection of the machine learning model, machine learning algorithms, model parameters (weights), data, dataset
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E.A. Dmitrikova, A.A. Karitskaya, A.A. Trofimov Constitutional Foundations of Differentiation of Control and Supervisory Proceedings and Proceedings on Administrative Offences The Constitution of the Russian Federation implies the need for
the State to exercise a control function, which, in particular, is
implemented within the framework of control and supervisory
proceedings, as well as the regulation of the procedure for
bringing to public liability, including proceedings on an
administrative offence. These types of administrative activities
are interconnected, which implies the need to distinguish them
on the basis of constitutional provisions. Such an approach
would allow resolving the existing contradictions in the relevant
part of the administrative-procedural regulation and ensuring
the uniformity of law enforcement practice, including through
the establishment of discretion criteria, which is manifested in
the choice by an authorised official of the procedural form for
detecting a violation of a mandatory requirement. In addition, the
constitutional principles of legal certainty, proportionality, trust in
the actions of the State and others dictate the requirements for the
harmonisation of legislation on control and supervisory activities
and legislation on administrative offenсes, without which both the
implementation of guarantees for the protection of the rights of
controlled persons and the effectiveness of the activities of state
authorities are at risk.
Keywords:
constitutional principles, control and supervisory proceedings, proceedings on administrative offences, control and supervisory activity
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