Exclusive (property) intellectual right as the right of intellectual property and the subject of civil turnover
Since personal non-property intellectual rights (the right of authorship, the right to a name, etc.) are inalienable and not transferable in another way (Clause 1, Article 150, clause 1, Article 1265 GK), civil means of acquiring and the use of intellectual rights to the results of intellectual activity and the means of individualization and disposition are entirely related to the exclusive, ie, property intellectual right, which according to the cumulative (general) meaning of Art. 1225 and 1226 of the Civil Code can be called the "intellectual property right to intellectual property" or, for brevity, the "intellectual property right".
And the point here is not in love or dislike for the proprietary concept of exclusive rights, and even more so not in any regard for the attribution of intellectual property to property in kind. Category mismatch intellectual property The rights to the intangible results of mental work, as well as the means of individualization equated to them, have long been recognized by many representatives of the world legal community. However, for its preservation there are a number of formal reasons. First of all, this category is contained in the Stockholm Convention on the Establishment of the World Intellectual Property Organization (WIPO) (1967), in which Russia also participates. In addition, we have this concept embodied in Art. 44 and in the about Art. 71 of the Constitution.
Therefore, the term "intellectual property", despite its complete mismatch with proprietary property, was preserved and maintained in the Civil Code. At the same time, until January 1, 2008 the term "intellectual property right" used by some lawyers It was perceived as a tautology, because in the sense of the previous art. 138 Civil Code intellectual property itself but could be treated as a collection of copyright, related, patent, etc. exclusive rights.
Since this right is established for intellectual property, in full accordance with the interpretation of intellectual property in Art. 1225 of the Civil Code, this right should be referred to as the exclusive (property) intellectual right to protected results of intellectual activity and equated to them means of individualization of legal persons, goods, works, services and enterprises. " with the subsequent exhaustive enumeration of 16 similar results and means, beginning with the works of science, literature and art and ending with commercial designations. In order not to take up every time you use the term "exclusive intellectual right" half page of the text, is offered as its synonym, using a simple technique of legal technique, to call this right "intellectual property right".
In addition, such a name clearly has more expressiveness for any right holder.
It is this intellectual right that is the subject of civil circulation. In accordance with this in paragraph 4 of Art. 129 ГК, introduced by the Federal Law of December 18, 2006 № 231-Φ3, provided that although the results of intellectual activity and the means of individualization equivalent to them (Article 1225 GK) can not be alienated or otherwise transferred from one person to another, the rights to such results and means may be alienated or otherwise transferred from one person to another in the cases and in the manner established by the Civil Code. In this case, the alienable rights can only be understood as exclusive rights.
Of course, the turnover of the exclusive right to the protected results of intellectual activity and the means of individualization differs significantly from the commodity-money turnover of things protected by proprietary property rights. With regard to the turnover of the exclusive right to the indicated results and means, i.e. intellectual property rights, the classical mechanism of production and exchange of goods as things is not used, but only a purely quasi-commodity-money form. Due to the ideal character and originality (or non-obviousness) of these results and means, the fee ("the price") for the acquisition of exclusive rights to them or for granting the right to use them is determined not by comparison of individual labor and other costs of their creator or other rightholder with socially necessary costs on their creation, since they do not exist and by definition can not exist, but only by the ratio of demand and supply to the rights to the indicated results and means.
The Civil Code traditionally states the independence of intellectual property rights from the proprietary right of ownership to a material carrier (thing), in which it is embodied, i.e. the corresponding result of mental labor or a means of individualizing the product or its producer is expressed. This is explained primarily and mainly by the immaterial (ideal) nature of the result of creative (ie intellectual, intellectual) activity and means of individualization. Any result of intellectual creativity for its perception should be expressed on one of the material carriers (paper, canvas, bronze, marble, film, disk, etc.), which allows you to associate it with the thing, i.e. the object of nature or the product of labor, possessing physical, chemical, biological, etc. properties, i. natural form. Due to the presence of this form, things are subject to wear, i.e. depreciation and even (consumed things) to disappearance from civil (property) turnover.
Unlike physical labor, which is usually the result of things, intellectual activity is the mental (mental, spiritual, creative) work of a person in the field of science and technology, including genetic engineering and microbiology, literature, art and artistic design ). The result of intellectual activity is its product, expressed in an objective form, called, depending on its nature, the product of science, literature, art, invention or industrial design. Each of these outcomes has its own special conditions for their protection and use, as well as the implementation and protection of the rights of their authors. However, they all share a number of common features.
First, the results of intellectual activity, unlike objects of real rights, are of an ideal nature. The works of science and technology are certain systems of scientific and technical concepts or categories. Literary and artistic works are a system of literary or artistic images. Of course, these categories and images are designated (expressed externally) by alphabetic, numeric and other signs, symbols, images or sounds, and often exist on certain material media (paper, film, stone, canvas, disk, etc.). However, from this they themselves do not cease to be ideal objects. Like all intangible objects that do not have a natural form, the results of intellectual activity are not subject to depreciation, depreciation. They can only become obsolete morally.
Secondly, the right can not directly affect the thought processes that occur in the human brain. The processes of thought activity remain outside the limits of the law.
However, without the ability to directly influence the creation of the results of intellectual activity, the right is able to positively influence this process by developing legal forms of organizing scientific, technical and other creative activities and fixing the conditions for the protection of its results in definitive norms.
Along with the product of human intelligence, an exclusive right can be established on a means of individualizing a legal entity, an enterprise as a property complex, as well as individualizing the work or services performed. names, trademarks, service marks, appellations of origin of goods or commercial designations used by participants of civil traffic for the purposes of personification (identification) of themselves, their products, works or services or voego enterprise.
Means of individualization as such are also the fruit of one's mental activity. However, their main value, unlike, let's say, works of science, literature and art, is not in themselves, but in helping them to create a healthy competitive environment by distinguishing both individual entrepreneurs, and the products they produce, works performed or services provided. In addition, the exclusive right to means of individualization is assigned not to their developers (for example, artists), but to persons who registered them in their name.
The ideal nature of the results of intellectual activity does not at all indicate its insignificance or isolation from the production of things necessary for people and other values of human society. Science and technology and innovative products created on their basis allow us to use the riches and forces of nature in the interests of man. Literature, art, design play a big role in the formation of his spiritual world and aesthetic level.
In the market conditions, timely and widespread use of the results of mental work contributes to improving the efficiency of entrepreneurial activities, the quality and competitiveness of goods, works and services. Exclusive rights, especially inventions, utility models, industrial designs, trademarks and other types of designations of goods, are an important part of the intangible assets of enterprises. Along with other values, these rights can be invested in entrepreneurial and other activities. Property rights to the results of intellectual activity may also serve as a contribution to the property of an economic partnership or a company (and item 6 of Article 66 of the Civil Code).