Gandzûk Yu.m., M. Vlasov,
an expert in the field of intellectual property
Intellectual property rights in works of fine art: the right following
Today, the legal relations in the field of intellectual property in Ukraine are regulated by specific provisions of the Constitution, norms of Civil, criminal, customs code of Ukraine, the code of administrative offences and procedural codes. In Ukraine are 10 special laws in the field of intellectual property. Ukraine is a party to the multilateral international treaties in this field.
Special legislation in the field of intellectual property consists of the following, in particular, laws of Ukraine "on protection of rights to inventions and utility models", "on protection of rights to marks for goods and services", "on protection of rights to industrial designs", "on protection of rights to indication of origin of goods", "on protection of rights in the topography of integrated circuits and copyright related rights i. They detail settled relations concerning acquisition, realization and protection of rights to inventions, utility models, trade marks (marks for goods and services), industrial designs, the topography of integrated circuits, geographical indication, the objects of copyright and related rights.
So, the question of protection of copyright and related rights are regulated by the law of Ukraine "on copyright and related rights". According to this law, are subject to the protection of moral rights and property rights of authors and their successors, ʼ associated with the creation and use of works of science, literature and art, copyright and the rights of performers, producers of Phonograms and videograms and broadcasting organizations-related rights.
The law determined that sat ʼ the objects of copyright are the authors of the works, their heirs and persons to whom the authors or their heirs have transferred their copyright or property rights. Objects of copyright recognized works of science, literature and art, namely: literary written works of literary, journalistic, scientific, technical or other nature (books, brochures, articles, etc.); speeches, lectures, speeches, sermons, and other oral works; computer programs; database; music with text and no text; dramatic, musical-dramatic works, pantomimes, choreographic and other works created for the stage show, and their productions; audiovisual works; works of fine art; works of architecture, urban planning and landscape architecture, and other works. This list is not exhaustive.
Copyright in a work arises due to the fact of its creation. For the emergence and exercise of copyright does not require registration of a work or any other special execution, as well as perform any other formalities. However, the copyright have the opportunity to register their rights in the prescribed manner.
In respect of related rights, the law specifies that sat ʼ objects of related rights: performers, producers of phonograms, videograms, their heirs and successors; Organization of broadcasting and their successors.
A separate section is devoted to the issue of management of rights of copyright and related rights. It notes that sat ʼ objects of copyright and related rights holders can manage their rights personally, through his agent or through a collective management organization. The law also provides a section dedicated to the protection of copyright and related rights. Consider the separate issue of protection of intellectual property rights in works of fine art and getting sponsored by fair compensation.
Fine art is one of the important components of the culture of each country and an integral part of the national creative wealth. It is Kesha that originates and the development of ancient times, plays a prominent role in the preservation of national identity, the formation of spiritual and cultural values of a society. Exactly fine art and works that are created by artists and artists or those that have been created in the past is an important economic factor, as well as the main impetus for the formation and development of very young Ukrainian art market. The art market is a complex system, the functioning of which has a predominantly commercial character, although the monetary value of goods (works of art) is closely linked with their artistic value. The main participants in the art market are the artists, as the creators of art and artistic product, galleries, auctions, etc., but also shoppers – museums, collectors and just art lovers. The art market is a socio-cultural phenomenon, the function of which is to be a mediator in relations between the subjects of creation and creative artistic production and its consumers.
Not for someone with Ukrainian artists and artists that exist at the expense of sales car disassembly 3D painting is not easy. Even more difficult to survive the artist, which promotes "pure" art, and is not intended to make a profit, and therefore captured only the creative side of the process. In many ways, local artists and their creations are currently worth much less than a similar American and European levels. The creative work of local craftsmen were undervalued by an average of 40-60%.
The right to use the image in advertising and other commercial purposes, belongs to the author, even after the sale of the work, not the owner of the paintings. If someone decides to use the image of the painting purposes, it can bring significant additional income and to the author. Many Ukrainian artists admit that gains from using images of their paintings to print posters and reproductions of substantially exceeding the income from the sale of the works.
Also, keep in mind that in the growth of prices for works of contemporary art are interested not only sellers and other representatives of the antique market, but also the most artists, the artists and their heirs. It's not just that the increased cost of new works, but also in the fact that in the period of validity of copyright, the authors have the right under certain circumstances to receive part of the revenue from the resale of their works. Above right is enshrined in the law of Ukraine "on copyright and related rights" as "right to follow". In international contracts and zakonodavstvah in some countries it is referred to as "the right to a share of the resale and the resale right.
Legislative consolidation rights following "was caused by the need to protect the property interests of the novice artists, sculptors and other artists whose creations bought sellers at low prices, and in the future, when the authors came to popularity, resold for much higher. Use the results of intellectual activity brought income to all participants of the market of works of fine art (galereâm, aukcìonam, yourself, etc.) in addition to the authors. Created a contradiction between the interests of these persons was removed at the beginning of XX century in the rationale and you turn right following the number of instruments the right adjustment of the relevant public relations.
Establishment and implementation of the rights of the following (TRANS of PHR – droit de suite) was carried out on the territory of France, namely, French special regulatory act on May 20, 1920. His appearance was conditioned by the struggle and efforts of artists for the improvement of working conditions against exploitation by traders who bought at low prices, poor picture of the authors subsequently made them advertising and pereprodavali for greatly increased on the first price. The law of France set the special property right, which was attached to the painter, when the last "parted" with his work so that he can "follow" him when transferring in or other hands and turn a profit if the work will be the subject of agreement. This right, which was named "right belief".
The main international treaty in the field of copyright Berne Convention is (side is Ukraine) for the protection of literary and artistic works. This international treaty was signed in 1886, the representatives of Belgium, Great Britain, Haiti, Germany, Spain, Italy, Liberia, Tunisia, France and Switzerland. The Berne Convention protects any works in the fields of science, literature and art, regardless of their value, the form and method of expression. At the Brussels Conference of 1948 in The Convention, among other changes and additions were included article 14ter.
This article provides that with respect to original works of art and original manuscripts of writers and composers, the author, and after his death the persons or institutions authorized by national legislation, use nevìdčužuvanim the right of partial participation in any sale of the work, the next first his assignment established by the author of the work.
This is the "right to follow" (according to the adopted in Ukrainian legislation on copyright terminology). This right is not established as required in connection with the Member countries of the Berne Union may decide whether or not to inject it right into their national legislation.
Paragraph 2 of article 14ter of the Berne Convention establishes the rule that the author can use the right of share participation in other Member countries of the Berne Union, only under the condition that this right is enshrined in the legislation of the country of the author, and only to the extent, which is set in the country in which the requested protection. The Berne Convention does not specify no procedure for the implementation of fees for additional remuneration for authors, who enjoy the right of share participation, nor the size of such remuneration. These issues are resolved exclusively by national legislation.
In accordance with article 448 of the Civil Code of Ukraine (hereinafter referred to as the code) the author has nevìdčužuvane rights to receive the cash amount at the rate of five per cent of the amount of each sale of the original artwork or original manuscript of a literary work, following the exclusion of the original transactions. The specified amount is paid by the seller of the original work.
Right, part one of this article, shall pass to the heirs of the author, and the heirs of these heirs and is valid until the end of the period of effective property rights intellectual property rights in the work specified in article 446 of this code.
According to the station. 27, law on copyright and related rights (hereinafter referred to as the Act), the author of a work of fine art, and in case of his death – the heirs within the established law of the period used for sold the author of original works of fine art nevìdčužuvanim the right to receive 5% from each sale of a work through auction, Gallery, salon, shop, etc., that goes for the first sale, carried out by the author of the work. Remuneration in this case is carried out by these online auctions, galleries, salons, stores, etc.
Thus, according to article 1 of the law of work of fine art is sculpture, painting, drawing, engraving, lithography, a work of art (including video) design, etc.
The right to the following acts within the term of the lease of the copyright in a work of fine art. Copyright is valid for the entire life of the author and 70 years after his death.
Fine art pieces are unique creations of the author, the sale of their originals can be the creator only once, while other artists (composers, writers) get the author's remuneration for the use of an unlimited number of copies of his works, that essentially have all the hallmarks of the original. A work of fine art, with the exception of author copies, always exists in a single copy. Copies that are made from it (reproduction, reproduction of the work in industrial products, etc.), the values of the original does not have. In this case, the author's remuneration for the use of a work of fine art is mainly limited to the amount that the author receives when selling the original work (cases of reproduction and distribution of works of fine art in a different way to bring the author much less profits than similar ways of using audiovisual, literary works, etc). This fact is injustice.
As a rule, young artists when their name is still unknown, but the works do not enjoy the popularity and high demand, sell their paintings for a fairly nominal fee. Over time they gain acceptance, credibility – the cost of the works is significantly increased. Using this, the owners (citizens in, stores, online auctions, etc.) works of fine art and artists in the field of fine art engaged in the sale of the first in a much higher price.
Way to protect the interests of the author of a work of fine art during his life and after his death and became the implementation of most of the countries with a large tradition in the field of copyright of the new legal Institute – "right belief", which requires obtaining the author or his heirs a portion of proceeds from all further public pereprodažìv works of fine art. The sale of the material object in which a work of fine art finds its outward expression is original and the most significant source of income of its author. In the case of a subsequent resale of a work of painting, sculpture or graphic there reason for exercising the right, following which provides artist to receive a percentage from each sale of a work through auction, Gallery, salon, shop, etc.
Therefore, the right following directly related to the fact the resale of a work of fine art. Resale Law calls every subsequent sale of the work, that goes for the first sale. In this case, is based on the fact that the author of a work of fine art is the original subject of the ownership of the work created by him and therefore alienation the author last and will be the first sale of the work.
The second condition for the emergence of the rights following – publicity resale. According to the law of purchase-sale of works of fine art is considered to be public if it is made through auction, Gallery, salon, shop, etc. Publicity agreement is a prerequisite for a more complete protection of property rights of the author or his heirs. It is on the subjects who organizes the auction, are the owners of the store, salon, etc., is entrusted the duty to inform the author or his heirs of the resale of a work and to pay 5% of the amount of the transaction. Publicity resale as a mandatory condition for the emergence of the rights following is provided solely by the law of Ukraine "on copyright and related rights".
Since the advent of the legislature fixing "right belief" in the legal regulations of the Ukrainian legislation on copyright has passed more than 20 years. Unfortunately, for a specified period not established the practice of implementation of this law. This is due largely to the fact that the provisions of article 27 of the law are declaratory in nature, do not meet the international practice of application of the law the following areas of development of normative-legal regulation of relations arising in connection with the resale of works of fine art, but also in inefficiency and opacity of the subjects of the market.
The collection and payment of remuneration, received as a result of the use of the rights following, carried out personally by the author through his agent or through collective management organizations.
The main participants regarding payment of compensation directly to the authors, their agent or collective management organizations for the right to follow – there are auctions, galleries, salons, stores, etc.
Gallery of fine art, Art Salon, shop, or other similar organization participated as a seller, buyer or intermediary at a public resale of the original work, on the basis of a contract with a person collecting fees represent him copies of documents confirming the price of resale of the original work, as well as other documents required for the collection and distribution of fees for listing and in terms that are defined in the relevant contract.
Analysis of the art market art of Ukraine, conducted by experts, leads to the conclusion that the relevant auctions (bidding), galleries, salons, stores, etc., making a sale of works of art do not pay an appropriate remuneration of the author from exercising its activity. The fact that only in Kiev a year are about 30 auctions (bidding), which sold fine art pieces for a total of approximately 20-25 million. United States dollars. According to experts on the territory of Ukraine through the auctions (bidding), galleries, salons, exhibitions-sales, stores, Internet auctions, etc., for the year realized works of fine art at 100-300 million. United States dollars. The problem still lies in the fact that the art market still remains opaque. Share open market sales of works of art is only a small percentage. The rest of the same transactions are nepublìčno, with the mediation of the private art dealers and galleries.
So, according to experts, this market is "black", i.e. that of the organizers of the auctions (bidding), galleries, salons, etc., get considerable profits from the sale of works of fine art and do not pay this special reward.
Given the fact that the market price of resale of original works of contemporary Ukrainian artists in the field of fine art in recent years, increasing the implementation of norms of national legislation and system interaction between the participants of the market of fine arts on the right following will significant increase in payment of author's remuneration for creative workers in Ukraine, thus further increasing the creative potential of Ukraine.