At the end of April, a scientific-practical conference “Legal protection of official results of intellectual activity in Russia” was held at the Higher School of Economics, at which I presented a report. I present the detailed theses of the report below. If you are interested in the topic of official works, I hope you will be pleasantly surprised by the abundance of unexpected problems and challenges that the world legal science is dealing with today.
To begin with, let’s look at two court cases, a kind of epigraphs to the topic.
Martha Graham, a renowned dancer and choreographer, agreed to transfer the rights to her dance performances as service works to the Contemporary Dance Center. All exclusive rights have been transferred to the company by virtue of the all-or-nothing principle applied to official works. Therefore, Marta lost the opportunity to creatively refine her performances, stage new ones based on them, and even simply perform dances without the consent of the Center. As a result, the desire to free herself from distracting business issues freed her from creative independence. The heirs entered into long-term legal battles.
Director Spike Lee directed a feature film based on the documentary by Jeffrey Aalmuhammed. During the filming, Aalmukhammed consulted the actors several times, wrote a number of scenes, and then claimed his rights to the picture. The court found that his contribution is creative, but if the actions of all other participants in the shooting are regulated by the rules on official works, then he cannot be called an employee. A conflict has arisen over the fact that the rights to a high-budget film could go equally between the studio and the visiting consultant. The court broke the deadlock by rejecting Aalmukhammed’s claims due to his lack of control over the film making process, thereby jeopardizing the huge industry of collective creativity, since even the director does not personally control the entire production process. We will return to all these points later.
As prof. E.P. Gavrilov, most of the creative results created are classified as service ones. According to some researchers, their share reaches 80-90%, depending on the industry. Statistics suggest that every lawyer will come across them regularly.
Many people know how things stand with the regulation of official RIA in Russian law. It may even seem to some that all the most interesting has long been studied. Of course it is not. Law is constantly evolving, and the space for scientific creativity is expanding at an accelerating rate, especially in the digital age. I would like to draw your attention to several curious trends in the world legal science that are only gaining momentum, but are already challenging researchers.
The first tendency manifested itself when the European law harmonized the concept of “the result of creativity” and the criteria for its protection. We know so little about what creativity is that we have long been accustomed to pretending that we already understand everything necessary about it. And we are content with the presumption of recognition of any result of intellectual activity as creative, even if we cannot see its novelty or originality. Although it is not always clear what remains in the end. In European jurisprudence, the concept of “originality” traditionally plays a central role, which had a wide range of definitions: from the British “work, skill and sanity” to the German “sufficient level of creativity.”
Several years ago, a uniform understanding of “originality” was laid down in European law, and the following formula was taken as a basis: a work is recognized as original if it is a “personal intellectual creation of the author”. This criterion first appeared in some EU directives in relation to individual creative results. Then the Court of Justice of the EU, which at the present stage of development of European law plays a central role in its harmonization, extended this criterion to all types of results of intel. activity and revealed the formula “personal intellectual creation of the author.” In the case of Eva-Maria Painer (2011), the court indicated that a creative result is recognized as personal if it “bears the imprint of the author’s personality”, and intellectual creation if “the author was able to express his creative ability to create a work through free and creative choice” (available meaning the selection and location of material, the use of artistic means of expression, and so on). These are two main parts of the originality criterion. At the same time, despite the difference in approaches, it has always been recognized that the threshold for the required originality is set very low in order to ensure that as many creative results as possible are protected. And in the process of introducing a unified approach into national practices, legal scholars suspected that for some official works the threshold of originality is higher than for the rest of the results, and some official works do not even reach the usual threshold. What’s the matter here?