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The Constitutional Court of the RF has ruled that illegal processing/creation of a composite and derivative computer program does not exclude the right to protection of the processor/compiler. This approach can also be applied to remixes
27.09.2022

As follows from the case file, the programmer created an application (computer program) based on publicly available software products. The rights to the created new composite and derivative program were assigned by the programmer's former employer, and he appealed to the court. However, the courts refused to recognize his rights, since the plaintiff did not confirm the consent of the authors of the software products he used.

The Constitutional Court of the RF recognized such an approach as unacceptable, while recognizing paragraph 3 of Article 1260 of the Civil Code, according to which the creator of a composite and derivative work exercises his copyright subject to the rights of the authors of the works used by him, inconsistent with the Constitution of the Russian Federation. It follows from the ruling of the Constitutional Court of the Russian Federation in this case that the copyright of a composite and derivative work must be protected regardless of whether the copyright holders of its parts have agreed to this.

As the Court noted, paragraph 3 of Article 1260 of the Civil Code contradicts the Constitution , "since in the system of current legal regulation it allows the court to refuse to protect the copyright of the creator of a computer program in a dispute with a person using the specified computer program in the absence of his consent, only on the grounds that the said program is a composite work and its author has not fulfilled the condition of observing the rights of the authors (copyright holders) of the objects (computer programs) used to create it". This approach can also be used to protect the rights of the authors of musical remixes.

In connection with the decision of the Constitutional Court of the RF, amendments will be made to the Civil Code.

In order to implement the decision of the Constitutional Court of the RF, the Ministry of Culture of Russia has prepared a bill according to which the translator, compiler or other author of a derivative or composite work has the right to take measures to protect their intellectual rights regardless of whether the rights of the authors of works used to create a derivative or composite work are respected. The NFMI sees in the submitted bill a number of risks associated with the creation of remixes:

  • Granting persons who created a composite or derivative work without the consent of the copyright holders of the original works the right to protect the violated exclusive right to such a composite or derivative work by means of civil liability measures (damages, compensation) will lead to the fact that the compiler and/or processor will actually receive unjustified enrichment. So, in fact, the right to claim damages or compensation will be directly conditioned by the fact that the compiler and/or processor violated the exclusive rights of the copyright holder of the original work (if the composite or derivative work had not been created, i.e. if the violation had not been committed, the compiler and/or processor could not have received compensation).
  • The proposed bill also potentially creates the ground for various kinds of abuses, when the result of illegal compilation or processing can bring income to the compiler or processor without the actual use by these persons of a composite or derivative work created without the consent of the copyright holders of the original works, by collecting compensation from persons using such composite and derivative works. In relation to the music industry, we are primarily talking about illegally created remixes and music compilations.
  • In addition, there may be problems in the distribution of rewards within the framework of collective management. In particular, the question will arise who is entitled to remuneration: the author of a derivative work (for example, the author of a remix) or the copyright holder of the original musical work. It seems that this issue should be resolved in favor of the original copyright holder.

 

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The Constitutional Court of the RF has ruled that illegal processing/creation of a composite and derivative computer program does not exclude the right to protection of the processor/compiler. This approach can also be applied to remixes..
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