The Civil Code of the Russian Federation defines a fixed list of positions that may have the status of intellectual property, and two criteria: the result of intellectual activity and a means of individualization. Commercial designations are written in a separate position, but there may not be any intellectual work behind them.
In practice, the invention can be emulated. The proposed new model may be a harmful result of the work of a specialist. It is important to know that a commercial designation or trade name can be used with impunity for personal gain.
Author, owner, object and reason for protection
According to Art. 1225 of the Civil Code of the Russian Federation, intellectual property is presented in an exhaustive list. But a database, a computer program, a phonogram, etc. are very capacious concepts. Their content essentially depends not only on the actions of the author, but also on the reaction of consumers to them. The interests of the owner, competitors and the goals of making profit create an amazing variety of solutions.
Social relations cannot be unconditionally laid down in the rule of law, but the current legislation can be used as a foundation to achieve the desired results from intellectual activity and to ensure individualization of real protection.
In any situation, the application of the results of intellectual activity or the benefits of using means of individualization are interesting not only to the author or owner. Income generation or intentional harm by third parties should never be underestimated.
Intellectual property has been protected by law not so long ago, but the practical interest of public consciousness has for many centuries forced people to create various options for protecting their interests.
Development of knowledge and skills
Scientific and technological progress has always existed. People have not yet come up with this term, and the results of intellectual activity and means of individualization have already taken place.
Man has always observed the environment and took all interesting things into account. He created tools, erected buildings, boiled metal, then learned how to create complex complexes and systems, mastered the energy of the atom, launched an artificial satellite, flew to the moon.
It is difficult to say who was right, the Inquisition or alchemists and astronomers, but such a cardinal argument as a bonfire testified that scientific discoveries cost not only money, but also life.
The development of knowledge and skills always goes in a spiral. Each new is based on the previous, denying or developing it.
Who invented the "lightning"
It is not so important who came up with a “zipper” on the dress, and who made a button. It is important that both are used for making clothes.
Probably, there were recognized and obscure inventors and authors of intellectual ideas on "lightning" and buttons. It is possible that another author filed for a patent yesterday, and tomorrow a new “zipper” or button will appear on the market that fastens itself.
Consumers care little about who created what. The consumer can honor the author of an idea, invention or discovery if the media reminds him of this. But not everyone keeps in his memory information about the inventor of a particular little thing, because each person has many other concerns that need to be thought about.
The previous century ended with the fact that advertising technologies and social projects themselves were the result of intellectual activity and formed the basis for distinguishing means of individualization as a subject of protection, falling under Article 1225 of the Civil Code of the Russian Federation.
Development and Information Technology
Programming is a mirror of intelligence. Figuratively speaking, it is possible to discern in it all other human achievements that international and domestic law relate to the results of intellectual activity.
A unique pasta machine is less dynamic than a program. This is an iron bed, an exact mechanism and one single operation. There are many operations in programming, and there are much more speakers.
But the pasta machine was born thanks to the author of the idea, the author of the invention of units or parts, the author of the recipe for the test. He is a peculiar face of the machine manufacturing company and the face of pasta enterprises.
As soon as pasta became popular, manufacturers of machine tools increased, some stole the ideas for the manufacture of such machines, while others acquired them legally. There were an unusually large number of recipes, and the faces of some pasta producers appeared on the packaging of products. These are trademarks, trade names, commercial designations in various formats of individualization.
Not every court will consider a claim for recognition of authorship and protect the results of intellectual activity or submit legal protection of intellectual property.
Example 1. Databases
Why have Arabic numerals become the foundation of mathematics? Why did the decimal base take over the logic of mathematics and become the foundation for geometry, algebra, higher mathematics, integral calculus, field theory, description of quanta or calculations of atomic explosion energy? The world is waves and fields. Such a statement is quite abstract to be extremely true.
Article 1225 of the Civil Code of the Russian Federation protects databases. The document acknowledges that the database is the result of intellectual activity, that is, it has an author, has a history of creation, has useful qualities and consumer properties.
If a programmer has created a database on the flora and fauna of the Altai Territory, then it can be used for environmental monitoring, protection of endangered species, solving environmental problems, etc.
But the programmer used the work of other people. Before the creation of its database, information was accumulated in books, scientific reports, and observations of specialists. It is doubtful that the "author" of the database agreed with them on their development.
Here, the “author” is an imaginary author, since it can be proved in court that the content of the database is not his job. Its result of intellectual activity is the database itself. But relational relations existed long before any modern author, and the databases were created back in the early 80s of the last century and the almighty company Oracle (a leader in the production and maintenance of databases of any level of complexity and responsibility) has not yet been came up with nothing new.
Databases were both relational in the 80s of the last century, and remained rectangular-dependent in the 18th year of this century. Therefore, it is difficult to say that it is subject to protection under Article 1225 of the Civil Code.
Example 2. Computer programs
Unlike the database, each program is determined by the scope. There are a great many of them. If we talk about the information aspect, then all enterprises do one thing, but each one considers his own business unique and subject to protection. It is pointless to discuss the novelty element and the subject of legal protection of electronic document management programs.
All products on electronic document management for one person and the next 5-10 years, any court can simply not consider any lawsuit regarding the protection of the results of intellectual activity with a clear conscience. There is no novelty - there is nothing to protect. The author can only be praised that he understood the subject and created another product.
Special programs for managing CNC machines, conveyors, finance, trading on the stock exchange and others are unique. Another author can write just a hundred lines of code and the CNC machine will brilliantly tailor clothes or accurately carry out surgical operations on the heart, providing undoubted help to the doctor.
Special programs for health care, environmental monitoring, calculation of groundwater movement and soil properties - the price of a person or city. The protection of intellectual activity is transformed into the protection of human life, the protection of material things.
Means of individualization of companies or their trademark are the results of intellectual activity that objectively guard their owners. In this case, the court has no choice but to admit the fact that there is a result, the fact of the existence of the author of the event, the ownership of the company’s trademark, the fact of the invention of a means that saved a person’s life or protected a settlement from disaster.
Example 3. Application of information and / or knowledge
The world is grateful to Microsoft for Windows, but 90% of users of this system do not consider it an ideal and complain about the problems that it created for them. Oracle has become a leader in the production of databases, but nothing new has been invented in four decades.
However, both companies have done a lot for a person. They systematized the scope, defined criteria, functionality and became a source for conceptual areas not only in the field of information technology, but also in the manufacture of machine tools, equipment for conveyor lines.
Knowledge and skills are the real result of intellectual activity and the real subject of protection under article 122 of the Civil Code of the Russian Federation. The developer (author) of a computer program or database can graduate from a prestigious educational institution, or can simply gain experience at the enterprise and create his own unique development.
In the first case, the court will have to prove only authorship. In the second case, it is necessary to prove or share something tangible in terms of profit based on a combination of the results of the intellectual activity of the employee and the conditions for providing this activity to the employer.
In both cases, it’s not necessary to graduate from a prestigious educational institution, but working with the results (products) from Microsoft or Oracle, in a month or two you can understand everything that these companies spent four decades of work of thousands of qualified specialists, tons of financial resources and burned the “ocean” of electricity . Protected results of intellectual activity and means of individualization (in this context) will not imply the costs and participation of Microsoft or Oracle.
Law is the foundation, author is dynamics
A trademark, service mark, description of a product or service - all this is briefly and accurately registered for the purpose of protecting the interests of the owner. The Register of Intellectual Property of the Russian Federation defines a tool for protecting the interests of owners of intellectual property, allows you to record a domestic or foreign manufacturer. The secret of a wine recipe or pasta dough is impossible and inappropriate to indicate here.
In programming, creating a work of science or art, you can not prove anything at all. It is possible to steal (imagine as one's own) the idea of superficial content.
An attacker cannot understand the author’s logic. Pursuing illegal goals, a person does not have the opportunity to become the author of the idea. It is impossible to go the path of a true author again. Already there is a result of intellectual activity, it is impossible to create the same thing again. But you can replenish the registry of intellectual property.
Having slightly improved the mechanism of the machine, changing the logo or its color scheme, inventing its own designation or technical specification, indirectly reminding the consumer of the true author (his rating, status, merits, etc.).
Associations and advertising campaign
If you do not touch science and the sphere of creativity, then the results of intellectual activity and means of individualization have a practical orientation and are necessary for human life, the functioning of mechanisms, the work of enterprises, the existence of the state as a whole.
Trademarks and service marks are a wonderful invention. This is the identification of the goods, a link to a specific legal entity, technology or method of obtaining something useful or necessary.
Modern public relations and an advertising campaign can be applied to trademarks of a particular company or author of an idea. As a result, another company or another author will appear.
Consumer associations will reduce the rightful owner's income. There will be a reason to restore the violated right. PR specialists and advertisers will not be punished, the burden of responsibility will fall on the unlawful action of the violator of the legal rights of the author or owner.
Article 1225 of the Civil Code of the Russian Federation with comments and detailed examples of application in recent years is often discussed on various information platforms. Scientific and technological progress is developing at an increasing pace. This is an objective basis for each author and owner of intellectual property is not limited to the common phrase "all rights reserved."
Commercial designations
In science and the field of creativity, it is extremely difficult to replace the author or owner of an idea. To do this, you need (at least) to think like an author, to have his knowledge and skills.
In real life, in production, when creating popular tunes, texts, programs, food, everything is much simpler. It is not intellect that rules, but money.
However, the knowledge and skills to make a profit or create successful enterprises is also a separate type of activity. It can also be protected under Article 1225 of the Civil Code. The only question is how to present this in a materialized form.
In any case, each result of intellectual activity is focused on social application; it is needed not by the author, but by society. The author has the right to do something for society, but to exaggerate his intellectual achievements when they acquire a commercial person and are evaluated by society for consumption, it should be within reasonable and legal limits.