The author's personal non-property rights, The right...

Author's personal non-property rights

A special group of rights is the personal non-property rights of the author, which include: the right of authorship, the author's right to a name, the right to inviolability of the work, the right to publish the work.

The right of authorship is the right to be recognized as the author of a work, and also to require a reference to the author when using it.

Author's authority to claim recognition of his authorship - this is the question of the list of use cases when third parties are required to indicate the author's name. The US Civil Code does not allow one to determine unambiguously whether the author's name is exhausted by situations stipulated in Art. 1274 and 1275 of the US Civil Code.

On the one hand, the author's authority to demand recognition of his authorship can be understood in such a way that third parties are obliged to indicate the author's name in any use of the work, including in the cases of free use indicated above. An indirect argument in favor of this position is Art. 1300 of the US Civil Code, according to which the use of the work must be accompanied, including information identifying the author. In addition, from this article it follows that in respect of works is not allowed:

- removal or modification without permission of the author or other copyright holder of the copyright information;

- reproduction, distribution, import for distribution, public performance, broadcasting or cable, bringing to the public knowledge of works in relation to which, without the permission of the author or other rightholder, copyright information has been deleted or changed.

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On the other hand, the right of authorship can be interpreted in such a way that third parties are obliged to indicate the name of the author only in those cases that are expressly provided for by law. In other cases of using the work, the person performing the action is not obliged to indicate the name of the author, unless, of course, he is obligated to do so under the contract.

The content of the author's authority to claim recognition of his authorship for a work is not limited to the passive obligation of third parties not to assign authorship. And this seems to be one of the most significant differences between the right of authorship and other absolute civil rights. In general, speaking about the development of this issue in the science of copyright, it should be noted that in the legal literature the duty of third parties to recognize the fact that a certain person is the author of the work is not separately examined. The prevailing view is that such a duty is passive and that it is realized by respecting the prohibition of attribution. However, even from the provisions of the US Civil Code it follows that the recognition of the person by the author of the work is also carried out by the active actions of third parties, which they are obliged to perform while using this work. According to Art. 1274 of the US Civil Code for the free use of works for information, educational, scientific or cultural purposes, persons who commit the specified actions are required to indicate both the name of the author whose work is used and the source of borrowing. A similar obligation is also provided for the free use of the work by reproducing (Article 1275 of the Civil Code of the United States).

As stated in Art. 6 bis of the Berne Convention, the author has the right to demand recognition of his authorship in the work. The competence in question is realized not by actions of the author, but by the performance of a certain duty by third parties.

In the legal literature there is also a judgment that the content of the authorship right includes the author's ability to oppose the false designation of authorship. K. Mazuie, considering art. 6 bis of the Berne Convention, indicates that the content of the right of authorship includes the ability to counteract the false attribution of the work: "In accordance with this provision, the author can refuse to put his name under a work he did not create; No one can also assign the name of another person, placing it under a work that this person has never created. "1. AG Matveev disagrees with this position, believing that such an extension of the content of the authorship right is questionable, since the right to oppose the false attribution of the work belongs not only to the authors, but to all citizens in general, i.е. it is not a moral (personal non-property) right of the author2. This point of view seems to us reasonable.

Author's right to name - the right to use or permit the use of the work under its own name, under an assumed name (alias) or without a name; anonymously.

In accordance with the Federal Law of March 12, 2014 No. 35-FZ art. 129.5 of the Civil Code of the United States was supplemented with clause 1. fixing the right of the employer to publish a work of art, unless otherwise provided by the contract between him and the author, as well as the right to indicate his name or designation when using his work, or to require such instruction.

The right to the inviolability of the work (paragraph 1 of item 1 of Article 1266 of the Civil Code) relates to such changes in the work that are not related to the creation of a new work on the basis of the existing one. Corresponding changes are allowed with the consent of the author (or other person in the case provided for in paragraph 2 of clause 1 of Article 1266 of the Civil Code of the United States), which must be expressly expressed. In the absence of evidence that the consent was expressly expressed, it is not considered to have been received.

The right to publish a work

In accordance with paragraph 1 of Art. 1268 of the US Civil Code, the author has the right to publish his work, i.e. the right to take action or consent to the performance of an action that first makes a work accessible to the public by its publication, public display, public performance, broadcast or cable, or in any other way.

In this publication (release) is the issuance of copies of the work, representing a copy of the work in any material form, in an amount sufficient to meet the reasonable needs of the public on the basis of the nature of the work.

The author who transferred the work to another person under the contract for use is deemed to have agreed to the publication of this work.

A work not published during the life of the author may be made public after his death by a person who has the exclusive right to work, if the publication does not contradict the will of the author of the work expressly expressed by him in writing (in wills, letters, diaries and the like) .

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