Magazine content за Май 2023 г.
Magazine Cover
Press to zoom

Buy a PDF


mag->month > 0 ) { ?>

mag->getMonthString();?> mag->year;?>

mag->pdf_file): ?> sess && $this->sess->isArticlePayed()):?>

Май 2023



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
Buy a PDF


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
Buy a PDF


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
Buy a PDF


V.O. Kalyatin To What Extent Can the Content of Databases Be Used: Some Problems and Perspectives
This article is devoted to the civil law aspects of using databases. There is a number of legal instruments providing control over databases, and the author explores them systematically. However, they relate only to particular elements of a database’ structure, whereas its very content could be used freely.
Keywords: intellectual property, database, copyright, patents, know-how, information, raw data
Buy a PDF


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
Buy a PDF


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
Buy a PDF


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
Buy a PDF


A.N. Vereshchagin First Steps of the Russian Copyright Law (A Decision of the Ruling Senate on the Course of Lectures by D.I. Meyer)
This essay sets out the unusual details of court proceedings and copyright issues regarding the course of lectures by famous Russian lawyer Dmitrii Meyer and analyses the precedent laid down by the Senate when resolving the case.
Keywords: D.I. Meyer, Ruling Senate, copyright law
Buy a PDF


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
Buy a PDF


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
Buy a PDF


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
Buy a PDF


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
Buy a PDF


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
Buy a PDF


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
Buy a PDF


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
Buy a PDF


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
Buy a PDF


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
Buy a PDF