- International copyright relations of Russia
The international copyright relations of Russia were virtually non-existent in Tsarist Russia and during much of the history of the
Soviet Union. Under the Tsars, only a few bilateral copyright treaties with other nations were concluded; these treaties moreover were weak and of short duration. The treaties from Tsarist times had all run out by end of the war.
October Revolution, the Soviet Union had no international copyright relations until 1967, when a first treaty with Hungarywas concluded. In 1973, the USSR then joined the Universal Copyright Convention(UCC), establishing copyright relations with Western countries. More bilateral treaties followed, including two with Western countries ( Austriain 1981 and Swedenin 1986), until the government announced its intention to join the Berne Convention in 1989. The USSR was dissolved before that plan could be realized. The Russian Federation acceded to the Berne Convention in 1994; the treaty entered in force in Russia on March 13, 1995.
Under the TsarsFirst international copyright treaties were concluded in Spring 1861 with
Franceand in July 1862 with Belgium. Both treaties provided for reciprocal copyright protection, but were limited to literature only; translation rights were not covered, and censorship was explicitly allowed. Both treaties were abrogated in 1887.Elst p. 67.]
Under Western pressure, new treaties were concluded in 1904 with
Germany, in 1905 with France, and in 1906 with Austria-Hungary. After the new copyright law of 1911 was passed, new or renewed treaties were concluded with Germany (1911), France (1911), Belgium (1913/14), and Denmark(1915). All these treaties provided for reciprocal copyright protection and also included the author's translation rights, which were protected for a period of ten years from the original publication of a work.Elst p. 70.] These treaties were of short duration only and expired after three to five years.Elst p. 71.] Tsarist Russia even planned to join the Berne Convention in the early 20th century, but that was, according to Stoyanovitch, prevented by the outbreak of World War I.Stoyanovitch, K.: "Le droit d'auteur dans les rapports entre la France et les pays socialistes", p. 187 in Pichon, R.; Durand-Auzias, R.: "Librairie générale de droit et de jurisprudence"; Paris 1959.]
Under the USSR
:"See also Accession of the USSR to the UCC in 1973After the
October Revolution, the Soviet Union initially had no international copyright relations at all.Elst p. 80.] During the period of the New Economic Policy(NEP), the Soviet regime unsuccessfully tried to conclude new bilateral copyright treaties with Great Britain, Germany, and Italy.Elst p. 77.] After these failed attempts, the USSR maintained an isolationist policy in copyright matters until the late 1960s. A first bilateral copyright treaty with Hungary became effective on November 17, 1967, and on October 8, 1971, a second treaty with Bulgariafollowed. Both treaties provided for reciprocal copyright protection with a general term of 15 years p.m.a. and also explicitly defined reciprocity for free uses.Elst p. 80, pointing out that Soviet works could be freely translated in Bulgaria under this reciprocity because of the freedom of translation granted by Soviet law.] Newcity p. 137ff, who explains that the treaty with Hungary was limited to citizens of both countries residing in these countries, works of citizens residing abroad were not covered. Newcity also explains that the reciprocity for free uses worked to the disadvantage of Soviet authors because Soviet law had broader free uses, and Soviet authors thus did not receive royalties they otherwise would have received under Hungarian or Bulgarian law.]
February 27, 1973, the Soviet Union deposited with the UNESCOits declaration of accession to the Geneva version of 1952 of the Universal Copyright Convention(UCC). UNESCO: " [http://www.unesco.org/culture/copyright/html_eng/ucc52ms.pdf Universal Copyright Convention adopted at Geneva in 1952 and annexed Protocols 1, 2 and 3: State of ratifications, acceptances and accessions up to 1 January 2000.] ", note 29. URL last accessed 2006-11-02.] Three months later, on May 27, 1973, the UCC entered in force with respect to the USSR, establishing copyright relations with Western countries.Elst p. 81.] The USSR timed its accession to the UCC to occur before the before the 1971 Paris version of the UCC entered in force.Elst, p. 82, footnote 147.] Once the Paris version had become effective, accessions to the earlier Geneva version were no longer possible. The USSR would then have been forced to implement the somewhat stronger provisions of the 1971 Paris version, which in particular explicitly recognized an author's exclusive rights to reproduction, performance, and broadcast of a work. Such neighbouring rights did not exist in Soviet law.
With the accession of the Soviet Union to the UCC, Soviet works published on or after
May 27, 1973became eligible to copyright in all other signatory countries of the UCC. Conversely, foreign works became copyrighted in the Soviet Union by virtue of the UCC if they were published on or after May 27, 1973and the publication occurred in a UCC country or the author was a citizen of a UCC country.Elst p. 83.]
There were initially fears in the West that the Soviet authorities could misuse the provisions of the UCC to censor undesirable works abroad: the regime could compulsorily purchase the copyright on such works without the authors' consent and then sue in foreign courts against the publication of Soviet works abroad, since the copyright would be owned by the state.Newcity p. 151ff.] However, this did not occur. Evidently, the Soviet authorities considered the measures provided by its other laws—in particular articles 70 and 190(1) of the RSFSR Criminal Code on
anti-Soviet agitationElst, p. 50–51. Article 190(1) was introduced in 1966 in the Criminal Code of the RSFSR, after the trial against Andrei Sinyavskyand Yuli Daniel, in which the prosecution had found it difficult to prove the intent to do harm that was required by article 70. The new article 190(1) made the "dissemination of known falsehoods that defame the Soviet political and social system" a criminal offense and didn't stipulate any intention at all. Similar provisions existed in the other republics' laws.] —sufficient to deal with dissidents without needing to resort to actions based on the copyright law. Furthermore, such actions would have badly damaged the prestige of the USSR abroad, and it was doubtful whether foreign countries would have honored such nationalizations.Elst p. 84, pointing out that French courts denied any effect in France of the nationalizations in 1919 of the works of 17 Russian composers.] The U.S. included in its Copyright law of 1976 an article 201(e) that explicitly invalidated all involuntary transfers of copyright. This provision was included in the U.S. Copyright Act of 1976precisely to prevent attempts of the Soviet government to employ the UCC to censor dissidents' works in the U.S.Nimmer, M.B.; Nimmer, D.: "Nimmer on Copyright", §10.04 at 10-56.5. On November 6, 1978, was amended by adding "except as provided under title 11". of the United States Codecovers bankruptcy.] —although no such attempts had occurred yet and didn't occur afterwards.Elst p. 85.]
Despite having joined the UCC, the Soviet Union continued its policy of bilateral agreements. New treaties with the
German Democratic Republic(effective November 21, 1973), Poland( October 4, 1974), and Czechoslovakia( March 18, 1975) were concluded. The 1967 treaty with Hungary had already been prolonged in 1971 and was again renewed in 1977, the treaty with Bulgaria was renewed in 1975. The treaties with Hungary and Czechoslovakia also included a provision for the protection of the moral rights "without limitation in time".Elst p. 606.] In 1981, the first bilateral treaty with a Western country was signed: the copyright treaty with Austriaentered in force on December 16, 1981.Dittrich pp. 760–768.] Elst p. 89f.] On May 30, 1985, a treaty with Cubafollowed,Elst p. 495.] and in 1986 the second treaty with a Western country was concluded with Sweden.Elst p. 367, pointing out that the treaty with Sweden explicitly also covered photographic works and also included the protection of the moral rights.] All these post-UCC treaties went beyond the provisions of the UCC because they were applied retroactivelyElst p. 90.] and explicitly applied also to works published "before" the USSR had joined the UCC and that were still copyrighted in their source country in 1973.Gavrilov, E. P.: "Lettre de l'U.R.S.S.: Evolution récente du droit d'auteur soviétique", pp. 226–246 in "Le Droit d'Auteur" 1987.] (The treaty with Austria was amended to cover such pre-1973 works in 1989.Elst p. 367.] ) On April 19, 1989, another copyright treaty with Madagascarwas concluded.Gavrilov, E. P.: "Lettre de l'U.R.S.S.: Evolution récente du droit d'auteur soviétique", pp. 364–380 in "Le Droit d'Auteur" 1990.] The treaty with the German Democratic Republic was rescinded by the USSR on June 2, 1991, following confusions about its continued applicability after the German reunification.
October 20, 1988, the USSR acceded to the Brussels Convention about measures against the unauthorized (re-)distribution of satellite transmissions. The treaty became effective for Russia from January 20, 1989on.WIPO: " [http://www.wipo.int/treaties/en/Remarks.jsp?cnty_id=1238C Brussels Convention – Contracting Parties: Details – Russian Federation] ". URL last accessed 2007-01-24.] Also in 1989, the Soviet government announced its intention to join the Berne Convention, but the USSR was dissolved before that plan could be realized.
The changing economy in the Soviet Union led to the conclusion of a trade treaty between the USSR and the
United States, signed by presidents Gorbachev and Bush on June 1, 1990. In this treaty, the U.S. imposed a number of measures in the field of intellectual property in exchange for granting the USSR most-favoured-nation status.Elst p. 349.] The treaty obliged the USSR to accede to the Berne Convention and to implement in its law a neighbouring rights scheme similar to what the Rome Convention laid down.Elst p. 350.] The USSR agreed in the treaty to take substantive steps to amend its legislation in that sense by 1991.Elst p. 351.] The treaty was ratified by the U.S. on December 23, 1991. The Soviet side no longer could do so, but the Russian Federation did so on June 12, 1992.The U.S. concluded similar agreements with the other successor states of the USSR, see "Circular 38a" of the U.S. Copyright Office.]
Under the Russian Federation
When the Soviet Union was dissolved, Russia as the largest successor state adopted all international obligations of the former USSR, including its membership to the UCC.Elst p. 485.] Consequently, Russia was henceforth considered a member of the UCC (in the 1952 Geneva text) since the date of the adherence of the USSR to that treaty, i.e., since
May 27, 1973. The membership of the USSR in the Brussels Convention was equally continued by the Russian Federation as from December 25, 1991.
June 25, 1993, Russia and Armeniasigned a treaty on the mutual protection of copyrights.Elst p. 388.] Elst p. 496.] To clarify the copyright situation amongst the states that had made up the former Soviet Union, the Commonwealth of Independent States(CIS) nations agreed on a cooperation agreement in the field of copyrights on September 24, 1993. This "Moscow agreement" declared that all signatory countries considered themselves bound by the UCC as of the date the USSR had joined and would confirm this state with the UNESCO, which administered the UCC.Elst p. 486. Both the UNESCO and the U.S. Copyright Office consider all CIS nations to be UCC (1952) members as of May 27, 1973. See U.S. Copyright Office, "Circular 38a".] The treaty also defined that the treaty states would apply the UCC amongst themselves, also for works published before May 27, 1973if those works had been copyrighted before this date according to the national laws of the successor states. This provision was subject to the rule of the shorter term. The intent of the Moscow agreement was to avoid that older Soviet works became copyrighted in only some of the successor states, but would become part of the public domain in some of the others.Elst p. 487.] The 1993 Moscow agreement entered in force in Russia on May 6, 1995.Lyapin & Paliashvili.]
During the same year, Russia and
Switzerlandconcluded a trade agreement in which they granted each other most-favoured-nation status concerning intellectual property rights, i.e., they agreed to grant the other treaty partner automatically and without conditions any trade advantage they'd grant a third country.Elst p. 344.] This treaty entered in force on July 1, 1995.Elst p. 353f.] In a comprehensive trade treaty with the European Unionthat was signed on June 24, 1994, Russia granted this most-favoured-nation status also to the EU member countries, excepting only trade advantages granted amongst the successor states of the USSR and also those Russia would grant a third country on an effective reciprocal basis.Elst p. 345f. "Effective reciprocal basis" means advantages granted by Russia to a third country only because this third country granted similar advantages to Russia in a bilateral treaty.] Because the ratification of this treaty was delayed as it had to be ratified by all EU members, an interim agreement containing only the provisions on intellectual property and the most-favoured-nation status was signed on July 17, 1995. It entered in force on February 1, 1996.Elst p. 347.]
November 3, 1994, the Russian government announced that the country would join three international treaties in the field of copyrights: the 1971 Paris version of the UCC including its annexes, the Geneva Phonograms Conventionon unauthorized duplication and parallel importof phonograms, and the Berne Convention.Russian Federation; decree no. 1224 from 1994.] The accession documents to all three treaties were deposited on December 9, 1994. The UCC (Paris 1971 version) became effective for Russia on March 9, 1995.UNESCO: " [http://www.unesco.org/culture/copyright/html_eng/ucc71ms.pdf Universal Copyright Convention as revised at Paris on 24 July 1971 and annexed Protocols 1 and 2: State of ratifications, acceptances and accessions up to 1 January 2000] ". URL last accessed 2006-11-02.] The Geneva Convention entered in force with respect to Russia on March 13, 1995and was not retroactive: it covered only phonograms recorded after that date.Elst p. 494.]
The Berne Convention also became effective for Russia on
March 13, 1995. WIPO: " [http://www.wipo.int/treaties/en/Remarks.jsp?cnty_id=1017C Contracting Parties - Berne Convention - Russian Federation - Details] ", URL last accessed 2007-01-25.] The Berne Convention "is" retroactive in principle:Elst p. 489.] according to its article 18, it applies to all works that are copyrighted in their source country (the country where the first publication of the work occurred) on the day the treaty enters in force with respect to a joining country such as Russia. Article 18(2) adds that if "through the expiry of the term of protection which was previously granted, a work has fallen into the public domain of the country where protection is claimed, that work shall not be protected anew."Berne Convention, article 18.] Hence works that were copyrighted in Russia on March 13, 1995became copyrighted in all other Berne Countries on that date.Elst p. 535.] Under these provisions, foreign works not formerly copyrighted in Russia should also have become copyrighted in Russia.Elst p. 493.] Russian legal scholars had warned of this, and the government feared the impacts on the trade balance with Western countries if Russian publishers would suddenly have to pay royalties for foreign works. In its declaration of accession, Russia therefore made a reservation regarding article 18 of the Berne Convention, stating that the treaty "shall not extend to the works which, at the date of entry into force of the said Convention in respect of the Russian Federation, are already in the public domain in its territory."WIPO: "Berne Notification 162."] For Russian and Soviet work that originated in Russia, this was just a restatement of article 18(1) of the Berne Convention; but as far as foreign works were concerned, this reservation effectively denied the retroactivity of the Berne Convention within Russia. This was of some importance because of the issue of foreign works published before May 27, 1973, when the USSR had joined the UCC. Such works had never been eligible to copyright in the Soviet Union or in Russia. Under §18(2) of the Berne Convention, they should have become copyrighted in 1995 because that article only exempted works that once "were" copyrighted, but on which that copyright already had expired, which didn't apply to pre-1973 foreign works in Russia. The reservation made by Russia used a slightly different phrasing, just stating that works that were in the public domainin Russia in 1995 would not be reprotected. As pre-1973 foreign works were not copyrighted at all and thus in the public domain in Russia in 1995, such works remained in the public domain in Russia. Russia thus got rather favorable conditions when it joined Berne Convention: Russian and Soviet works became copyrighted retroactively in other Berne countries, but pre-1973 works from those other countries did "not" become copyrighted in Russia.
This Russian interpretation was heavily criticized by Western countries and in particular by the
United States. Russian scholars, however, repeatedly (and, in the opinion of Elst, rightly) pointed out that there had been a very prominent precedent:Podshibikhin & Leontiev 2002 explain the argument presented here using the 1995 case of " Itar-Tass v. Russian Kurier" as an example. After defending the Russian practice, Podshibikhin & Leontiev then express the opinion that the continued application of the non-retroactivity reservation was becoming a problem in Russia's international relations and were better ended. They then explain the necessary modifications of the 1993 law to introduce the copyright restoration as it is prescribed by the Berne Convention. Their proposed modifications coincide with the changes that were indeed made in 2004 by law no. 72-FL.] in 1989, when the U.S. had joined the Berne Convention, they "also" had denied the retroactivity of the treaty.Elst p. 491.] From 1989 until 1995, the U.S. only respected the copyrights under the Berne Convention on foreign works from another country that were published on or after the later of that country's adherence date to the Berne Convention and March 1, 1989(the adherence date of U.S.),WIPO: " [http://www.wipo.int/treaties/en/ShowResults.jsp?country_id=179C&start_year=ANY&end_year=ANY&search_what=C&treaty_all=ALL Contracting Parties: United States of America] ". URL last accessed 2007-01-23.] and on foreign works from a UCC country according to the provisions of the UCC, which meant on works that were published after the later of September 16, 1955(the date the UCC entered in force for the U.S. and the other initial signatories) and the adherence date of the foreign UCC country.Regnier p. 400ff.] In the case of Russian or Soviet works, this meant that until 1996, the U.S. continued to recognize only copyrights on Soviet works published after May 27, 1973.Pilch 2003, p. 83.] The U.S. faced harsh critique for its unilateral denouncement of the retroactivity of the Berne Convention defined in article 18(1) BC. Ultimately, the U.S. had to reverse its position on that issue. It implemented the TRIPSagreement (a precondition to becoming a WTO member) in its Uruguay Round Agreements Act(URAA), which was signed into law on December 8, 1994. The URAA effectively restored the copyright in the U.S. on foreign works on January 1, 1996, if those works were until then not copyrighted in the U.S. because of a failure to meet the U.S. fomalities (such as not bearing a copyright notice, or lacking registration with the U.S. Copyright Office) or because of a lack of international treaties between the U.S. and the source country of the work, if the work was still copyrighted in its source country on January 1, 1996.Pilch 2003, p. 84. The copyright restoration provisions of the URAA are contained in in the copyright law of the U.S.] See also Circular 38b of the U.S. Copyright Office.]
Russian scholars have disputed this retroactivity issue at length. Gavrilov, for instance, who had argued for the Russian reservation to the Berne Convention, kept defending it, while others disagreed.Russian Association of Book Publishers] Maggs and Sergeyev, for instance, pointed out in 2000 that the reservation was inadmissible under article 30(1) of the Berne Convention;Maggs & Sergeyev, chapter 7, section E.4.] Podshibikhin and Leontiev agreed in 2002.Podshibikhin & Leontiev 2002.] The modification of the copyright law through law 72-FL in 2004 refuelled the discussion, because this law added a new paragraph 4 to article 5 of the 1993 copyright law which clearly stated under which conditions foreign works were copyrighted in Russia, using a wording that corresponded in essence to articles 18(1) "and" 18(2) of the Berne Convention.Law no. 72- _ru. ФЗ of 2004, chapter 1, article 2 (modifying article 5 of the copyright law). Furthermore, copyrights on foreign works were made subject to the
rule of the shorter term. Compare also Podshibikhin & Leontiev, who had in 2002 proposed exactly such a modification (albeit without a rule of the shorter term) to end the Russian non-retroactivity reservation.] Nevertheless, Gavrilov continued arguing in favour of the non-protection of pre-1973 foreign works, arguing that this was not so much a reservation to the Berne Convention but merely an interpretation, whereas others considered the 2004 amendments to finally do away with this reservation and claimed that law 72-FL restored copyright in Russia on pre-1973 foreign works. According to the Russian representative at the negotiations on Russia's accession to the WTO, law 72-FL indeed was intended to rescind the non-retroactivity reservation, thereby restoring copyrights on pre-1973 foreign works.WTO, "Draft report of the Working Party...", October 15, 2004, point 575.] The Russian copyright law (already before 2004) also considered international treaties self-executing and to take precedence over the Russian law (article 3).Pilch 2004, p. 85.] The common practice in Russia nevertheless did not change; pre-1973 foreign works were commonly considered to be uncopyrighted in Russia due to this reservation.Budylin & Osipova, p. 8, still stated in January 2007 that pre-1973 foreign works were uncopyrighted in Russia.]
In 2003, Russia also joined the
Rome Convention, the analogue of the Berne Convention for neighbouring rights. The adherence of Russia to the Rome Convention became effective on May 26, 2003. WIPO: " [http://www.wipo.int/treaties/en/ShowResults.jsp?country_id=147C&start_year=ANY&end_year=ANY&search_what=C&treaty_all=ALL Contracting Parties: Russian Federation] ". URL last accessed 2007-01-23.] The Rome convention covered performances, phonograms, and broadcasts. For phonograms, it stipulated that phonograms produced by a national of a contracting state, or fixated in a contracting state, or published in a contracting state were covered, but allowed signatory countries to choose among the latter two (article 5).WIPO: " [http://www.wipo.int/treaties/en/ip/rome/trtdocs_wo024.html International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations done at Rome on October 26, 1961] ". URL last accessed 2007-01-23.] Russia chose to apply the criteria of nationality and publication, declaring the criterion of fixation as inapplicable in its adherence to the treaty.WIPO: " [http://www.wipo.int/treaties/en/Remarks.jsp?cnty_id=1705C Details of the adherence of the Russian Federation to the Rome Convention] ". URL last accessed 2007-01-23.] The Rome Convention is non-retroactive and applies only to phonograms created after and to performances or broadcasts that occurred after a country jointed the convention (article 20).
Until 2006, Russia had joined neither the
WIPO Copyright Treatynor the WIPO Performances and Phonograms Treaty. Its application to enter General Agreement on Tariffs and Trade(GATT) and to become a World Trade Organization(WTO) member was postponed in 2001;Elst p. 336.] negotiations were still ongoing in 2006. WTO: " [http://www.wto.org/english/thewto_e/acc_e/a1_russie_e.htm Status of the Accession of the Russian Federation] ". URL last accessed 2007-01-25.] If and when Russia should become a WTO member, it would need to rescind its non-retroactivity reservation regarding the Berne Convention.Elst p. 492.] Indeed Russia agreed in November 2006 to ensure that its new intellectual property legislation in part IV of the Civil Code, which was scheduled to enter in force on January 1, 2008, was fully TRIPS compliant .U.S. Trade Representative, "Factsheet...", November 10, 2006.]
The international copyright relations of the Soviet Union and of Russia gave rise to copyright on Soviet works abroad and also to some foreign works becoming copyrighted in the USSR or in Russia. In some some cases, Soviet works even became copyrighted in other countries in the absence of any international copyright treaties.
Copyright on foreign works in the USSR and in Russia
Prior to the accession of the Soviet Union to the UCC, only works by foreign authors that were first published in the USSR and unpublished works of foreign authors that existed in an objective form on the territory of the USSR were eligible to copyright.Newcity p. 53.] When the USSR joined the UCC in 1973 and the treaty entered in force with respect to the USSR on
May 27, 1973, foreign works first published on or after that date outside of the USSR became copyrighted in the Soviet Union if
*the author was a national of any other signatory country of the UCC, irrespective of where this publication occurred, or if
*the work was first published in any other UCC country, regardless of the nationality of the author.
In addition to the UCC, the bilateral treaties the USSR concluded with several countries, amongst them also two Western countries, made works of nationals of these countries eligible for copyright in the Soviet Union, even works published before
May 27, 1973. In the case of Austria, Poland, and Sweden, this even applied to any work first published there, irrespective of the nationality of the author.
Since its accession to the Berne Convention in 1995, the following foreign works were copyrighted in Russia:
* Soviet works published in the Russian SFSR, as well as works of authors who became citizens of the Russian federation after the demise of the USSR became subject to the copyright law of the Russian Federation of 1993 (and its amendments) due to the strict territoriality of copyright law.Elst p. 485; see also §5 of the 1993 Copyright law, covering works of Russian citizens and works "disclosed on the territory of the Russian Federation", which coincides with the territory of the former RSFSR.]
*Soviet works that were first published in one of the other fourteen republics of the USSR and created by authors who did not become nationals of the Russian Federation were subject to the Russian copyright law per the Moscow agreement.
* Works by nationals of countries that adhered to the Berne Convention, but not to the UCC, or works published in such a country, became eligible to copyright in Russia if they were published on or after
March 13, 1995, the date the Berne Convention became effective with respect to Russia.Gavrilov 1999, comment 6 to article 5.]
* Works of nationals of UCC countries, or works first published in such a country (regardless of the author's nationality), were subject to copyright in Russia if the works were first published on or after
May 27, 1973. Because of the Russian reservation concerning the retroactivity of the Berne Convention, this applied whether or not the UCC country had also signed the Berne Convention.
* Pre-1973 works of nationals of one of the countries the USSR or Russia concluded bilateral treaties with were subject to copyright in Russia insofar as these treaties remained effective. This concerned works of nationals of Austria, Armenia, Bulgaria, Cuba, the Czech Republic, Hungary, Madagascar, Poland, Slovakia, and Sweden, regardless of the place of first publication.Elst p. 494f.] It also applied generally to works first published in Austria, Poland, or Sweden, regardless of the author's nationality, as the bilateral treaties with these states explicitly stated so.
Copyright on Soviet and Russian works in other countries
Even before the accession of the Soviet Union to the UCC in 1973, some Soviet works were copyrighted in some other countries.Newcity p. 34.] One well-known case concerned the actions of the four Soviet composers Shostakovich, Khachaturian, Prokofiev, and Myaskovsky against the movie company
20th Century Fox. 20th Century Fox had published a movie called "The Iron Curtain", using music of these four composers as background music and crediting the composers. The four Soviet composers initiated legal actions against the movie company, claiming that the use of their names and music in a movie whose theme was objectionable to them and that was unsympathetic to the Soviet ideologyStandler, quoting from "Shostakovich v. 20th Century-Fox", 80 N.Y.S.2d 575, at 578–579.] libeled them and violated their civil rights. In the U.S., the courts dismissed these claims in " Shostakovich v. Twentieth Century-Fox" (80 N.Y.S.2d 575 (N.Y. Sup. Ct. 1948), affirmed, 87 N.Y.S.2d 430 (N.Y. App. Div. 1949)), in particular because the works of these composers were in the public domain in the U.S. at that time because there were no international treaties relating to copyright between the U.S. and the USSR. The compositions themselves also had not been distorted, so the court found that the composers' moral right to the integrity of the work was not violated.
The four plaintiffs also went to court over this issue in France. Up to 1964, the French legislation treated both French authors and foreign authors exactly the same; works of both were granted exactly the same copyright protection.Newcity p. 35.] In a law suit that was ultimately decided by the French Court of Cassation in 1959," _fr. Société Fox, Europe v. Société Le Chant du Monde", D. Jur 93 (1960), 1959 J.C.P. II11580 ( _fr. Cour de Cassation). " _fr. Société Le Chant du Monde" was the rights holder in France on these Soviet composer's works.] the
plaintiffs won: the court ruled that that works of foreign authors were entitled to copyright in France, and that the works of these four Soviet composers were thus copyrighted in France. It found their moral rights violated and ordered the film to be confiscated.Gigante 1996]
Another way by which Soviet works could become copyrighted outside of the Soviet Union was the smuggling of manuscripts out of the USSR to have the work first published abroad. This practice, known as "tamizdat" in the Soviet Union, could result in serious repercussions for the authors in the USSR, but was still employed as one of the few ways the governmental
censorshipcould be bypassed. As a side effect, "tamizdat" works were granted copyright in the foreign country of first publication. If that country was a signatory of the UCC or the Berne Convention, the work was also granted copyright in all other signatories of these treaties, because they both extended copyright to works of citizens of non-member states, if these works were first published in a member state.Newcity p. 36.] Elst p. 33.] A very famous case of a "tamizdat" publication was Boris Pasternak's novel " Doctor Zhivago", which, after it had been refused by Soviet publishers,Elst p. 42.] was first published in an Italian translation in Italyin 1957. Because Italy was a member of both the UCC and the Berne Convention, the work was entitled to full copyright in all other member states of these two conventions. Pasternak was expelled from the Writers' Union and, after he had been awarded the Nobel Prize in Literaturein 1958, forced to decline acceptance of the award.
Early Soviet authors sometimes benefited from international copyright on their works just naturally.
Maxim Gorkyand Sergei Prokofiev, for instance, both had lived for some time abroad and published works in other countries that were members of the Berne Convention. These works of theirs were copyrighted in all other signatory countries of the Berne Convention. After the case of "Doctor Zhivago", Soviet publishers became more aware of this possibility to have Soviet works covered by the Berne Convention. Soviet state organizations began to arrange for (simultaneous) first publication of some Soviet works in a country of the Berne Convention. For instance, Mikhail Sholokov's novel "They Fought for Their Country" was officially first published in Italy.
When the Soviet Union joined to the UCC, all Soviet works published on or after
May 27, 1973became eligible to copyright in all other signatory countries of the UCC. This state persisted until the dissolution of the USSR. When the USSR disintegrated, so did its copyright law. The split into fifteen independent states translated into a split into fifteen independent copyright laws, each with its own jurisdiction defined by the territory of the new successor state of the Soviet Union. Through the Moscow agreement, Soviet works first published in the RSFSR, which were thus subject to the Russian law, became eligible for copyright is all other CIS nations, even if they had been published before 1973.
Since its accession to the Berne Convention in 1995, the following Russian and Soviet works were copyrighted outside of Russia:
* All works copyrighted in Russia in 1995, when Russia joined the Berne Convention, became copyrighted in other Berne countries. By virtue of the retroactivity of the Russian copyright law of 1993, this also included many pre-1973 Soviet works,Elst p. 532ff.] namely all works published in 1945 or later and also older works of authors who died or were rehabilitated in 1945 or later (or 1941 for authors who lived during the Great Patriotic War), if these works were first published in the Russian SFSR (or later in Russia) or the author had become a citizen of the Russian Federation after the demise of the Soviet Union.Elst p. 481.]
* All works copyrighted in Russia on
January 1, 1996, the effective date of the U.S. Uruguay Round Agreements Act, became copyrighted in the U.S. on that date. This essentially concerned all the same works as above, but using the years 1946 or 1942 instead of 1945 and 1941, respectively.Pilch 2003, p. 86.] See e.g. ASCAP's list of [http://www.ascap.com/restored_works/restore_index.cfm compositions whose copyright was restored] in 1996 by the URAA. URL last accessed 2007-01-25.]
* In the countries that had bilateral treaties with the USSR, pre-1973 Soviet works (from any of the fifteen SSRs) were copyrighted even before.
*Elst, M.: "Copyright, Freedom of Speech, and Cultural Policy in the Russian Federation", Martinus Nijhoff, Leiden/Boston, 2005; ISBN 9-004-14087-5.
*Newcity, M. A.: "Copyright Law in the Soviet Union", Praeger Publishers, New York 1978. ISBN 0-275-56450-9.
*Budylin, S.; Osipova, Y.: " [http://www.jhtl.org/docs/pdf/Budylin_article.pdf Is allofmp3 legal? Non-contractual licensing under Russian Copyright Law] ", pp. 1–17 in "Journal of High Technology Law 7(1)", 2007. ISSN 1536-7983. URL last accessed
*Dittrich, R.: "Österreichisches und Internationales Urheberrecht", Manz'sche Verlags- u. Universitätsbuchhandlung, Wener 1988;
*Gavrilov, E. P. (1999): " [http://web.archive.org/web/20050430202132/http://zakon.vladnews.ru/zakon_all/postcom2.html _ru. Постатейный комментарий к закону об авторских правах] ", undated (ca. 1999/2000) online version of his paragraph-by-paragraph commentary on the Russian copyright law of 1993. URL last accessed
*Gigante, A.: " [http://cyber.law.harvard.edu/property00/jurisdiction/Gigante.html Ice Patch on the Information Superhighway: Foreign Liability for Domestically Created Content] ", pp. 523 –562 in "Cardozo Arts and Entertainment Law Journal 1996". URL last accessed
*Lewinski, S. von: " [http://portal.unesco.org/culture/es/file_download.php/ec593101055da146fcd0c8372a901212ucc_study_e.pdf The Role and Future of the Universal Copyright Convention] ", UNESCO " [http://portal.unesco.org/culture/en/ev.php-URL_ID=5130&URL_DO=DO_TOPIC&URL_SECTION=201.html Copyright Bulletin] Oct. – Dec. 2006;" ISSN 1817-4167. URL last accessed
*Lyapin, A.; Paliashvili, I.: " [http://www.rulg.com/documents/Retroactivity_Report_Russia.doc Study of Retroactivity in Copyright and Neighboring Rights Protection an Russia] " (
Microsoft Worddocument, 90kB), April 11, 2001. URL last accessed 2007-01-23.
*Maggs, P. B.; Sergeyev, P. A.: " [http://www.auditorium.ru/books/343/ _ru. Интеллектуальная собственность] " ("Intellectual Property"); 2000; 400 pp. ISBN 5-7975-0333-6. In Russian. Available on-line; URL last accessed
*Pilch, J. T. (2003): "Understanding Copyright Law for Slavic, East European, and Eurasian Materials", in "Slavic and East European Information Resources (SEEIR) 4(1)", pp. 75 – 101; Haworth Information Press 2003. ISSN 1522-8886.
*Pilch, J. T. (2004): "Current Copyright Legislation of the CIS Nations and its Relevance for U.S. Library Collections: The Laws of Russia, Ukraine, Belarus, and Moldova", in "Slavic and East European Information Resources (SEEIR) 5(1/2)", pp. 81 – 122; Haworth Information Press 2004. ISSN 1522-8886.
*Podshibikhin, L. I.; Leontiev, K. B.: " [http://www.technolaw.ru/reviews/docs/n730 _ru. Реализация в Российской Федерации положений Бернской конвенции об охране литературных и художественных произведений] " ("The implementation of the Berne Convention in the Russian Federation");
April 25, 2002. An [http://web.archive.org/web/20050227032043/http://www.copyright.ru/publ-412.html archived version] also exists. In Russian. URLs last accessed 2007-01-25.
*Regnier, O.: "Who Framed Article 18? The Protection of pre-1989 Works in the U.S. under the Berne Convention", p. 400–405 in "European Intellectual Property Review", 1993.
*Russian Association of Book Publishers: " [http://www.aski.ru/low2.asp _ru. Об изменениях и дополнениях, внесенных в статью 5 Закона РФ "Об авторском праве и смежных правах"] ". In Russian. URL last accessed
*Standler, R. B.: " [http://www.rbs2.com/moral.htm Moral Rights of Authors in the USA] ", 1998. URL last accessed
U.S. Copyright Office: " [http://www.copyright.gov/circs/circ38a.html Circular 38a: International Copyright Relations of the United States] ". URL last accessed 2007-01-26.
*U.S. Copyright Office: " [http://www.copyright.gov/circs/circ38b.pdf Circular 38b: Highlights of Copyright Amendments Contained in the URAA] ". URL last accessed
U.S. Trade Representative, " [http://www.ustr.gov/Document_Library/Fact_Sheets/2006/Factsheet_on_US_Russia_WTO_Bilateral_Market_Access_Agreement.html Factsheet on U.S. – Russia WTO Bilateral Market Access Agreement] ", November 10, 2006. URL last accessed 2007-01-26.
*WIPO: " [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html Berne Convention for the Protection of Literary and Artistic Works] "... as revised in Paris 1971 and amended in 1979. URL last accessed
*WIPO: " [http://www.wipo.int/edocs/notdocs/en/berne/treaty_berne_162.html Berne Notification 162: Accession by the Russian Federation] ",
December 13, 1994. URL last accessed 2007-01-23.
*WTO, Working Party on the Accession of the Russian Federation: " [http://gdd.trade.gov.tw/boftdown/attach/09305507420/F-0930550742-0-C.doc Draft Report of the Working Party on the Accession of the Russian Federation to the World Trade Organization, revision 3] ", document WT/ACC/SPEC/RUS/25/Rev.3,
October 15, 2004. Microsoft Word document, 853kB. URL last accessed 2007-01-29.
*Russian Federation, decree no. 1224/1994: " [http://www.copyrighter.ru/full/index.html?berne4.htm _ru. О присоединении Российской Федерации к Бернской конвенции об охране литературных и художественных произведений в редакции 1971 года, Всемирной конвенции об авторском праве в редакции 1971 года и дополнительным Протоколам 1 и 2, Конвенции 1971 года об охране интересов производителей фонограмм от незаконного воспроизводства их фонограмм] ",
November 3, 1994, in Russian. Governmental decree no. 1224 from 1994, signed by Viktor Chernomyrdin, about the accession of Russia to three international copyright treaties. Includes the Russian reservation concerning the Berne Convention. URL last accessed 2007-01-23.
*Russian Federation: " [http://www.cipr.org/legal_reference/countries/russia/Russia_Copyright_ENG.pdf Law on Copyright and Neighbouring Rights] ", English translation of federal law no. 5351-1, of 1993 (with amendments up to 2004). URL last accessed
*Russian Federation, law 72- _ru. ФЗ of 2004: " [http://www.fips.ru/avp/law/pr_izm_avp.htm _ru. Федеральный закон от 20 июля 2004 г. N 72-ФЗ О внесении изменений в Закон Российской Федерации "Об авторском праве и смежных правах"] ", Federal law no. 72-FL of
July 20, 2004on amendments to the copyright law, signed by Vladimir Putin, published on July 28, 2004. Entry in force on August 8, 2004; some provisions became effective only on September 1, 2006. In Russian. A [http://www.russisches-recht-berlin.de/beitraege/Nikiforov_Russisches_UrhG.pdf German translation] is also available online. In English, there's a version of the whole 1993 copyright law, as amended in 1995 and 2004, with the [http://web.archive.org/web/20050405112959/http://www.copyright.ru/english-1557.html changes introduced by 72-FL in boldface] . "72-FL" ("FL" stands for "federal law") is sometimes also given in transliterated form "72-FZ" for " _ru. federalnyi zakon".) URLs last accessed 2007-01-23.
* [http://www.copyrighter.ru/full/index.html?gk1964.htm Chapter IV of the 1964 Civil Code of the RSFSR] , in a post-1973 edition (with the 25 years "p.m.a." term): the Soviet copyright law in Russian.
* [http://www.copyrighter.ru/full/index.html?civilbasix.htm Chapter IV of the 1991 Fundamentals] , in Russian.
* [http://www.cipr.org/legal_reference/countries/russia/Russia_Copyright_ENG.pdf English translation of the Russian Law on Copyright and Neighbouring Rights of 1993, with amendments up to 2004] .
* [http://www.fips.ru/ruptoen/index.htm ROSPATENT] – Russian Federal Service for Intellectual Property, Patents, and Trademarks.
* [http://www.cipr.org/ CIPR] – Coalition for Intellectual Property Rights.
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