Vol 46, No 3 (2023)
Статьи
Encomium to the Intellectual Property Court



Information. State. Human Rights
“Information atelier”: omnimedia and transformation of the law
Abstract
The etymology and history of the concept of “omnimedia”, which is new for the mass media theory and practice, are described. The meaning of the concept is analysed. Omnimedia technologies are explained. Examples of the formation and practice of omnimedia are given. It is shown how, artificial intelligence on the basis of artificial intelligence, using Big Data, a platform for an intelligent omnimedia environment is created, which combines the search, production, preparation of an “information package” for a specific consumer and its delivery at the specified time and in the desired form. The changes and challenges that await mass media law and information law in the transition to omnimedia level are discussed.



Media law in the Commonwealth of Australia: current trends in development
Abstract
In the modern era, the not at all new maxim that information rules the world is getting a new, this time “digital-platform” confirmation of its truth. With the emergence of global online platforms in the 1990s, the categories of “freedom of speech”, “freedom of mass information” and “freedom of self-expression”, while gradually changing the technological formats of their embodiment and implementation, keep their democratic essence and role in the processes of personal, public and state development unchanged.
As humankind enters its next information cycle, roughly covering the first decades of the 21st century, institutional and regulatory potential of the historically “youngest” information and communication freedom — the freedom of web-based (online) information and communication — is gradually taking shape, gaining institutional and regulatory potential. Like its antecedents (freedom of speech, press, radio and television broadcasting), it requires a certain upgrade of its social regulatory mechanisms as it “matures” and enters into the life of global, national and regional societies.
It is the context of the implementation of this kind of innovation on the example of a specific country — Australia — that determines the basic subject of this article, its main essential component. Specific and topical manifestations of this essence are analyzed by the authors of this article using examples of legal and other regulatory systems in the Australian media sphere. For example, one of the subjects of analysis is the question of how is Australia coping with the challenge of updating its social regulatory mechanisms in the media sphere. And, as a logical consequence of the former, is there any position in Australia’s relevant experience that is worthy of reception in other legal and ethical orders?
Focusing on these issues the authors review some of the most interesting decisions taken by the Australian government over the past decade. The authors also analyse the current law and other regulatory mechanisms and instruments in Australia aimed at regulating the mass media public relations in this country as well as the main trends of their development. In particular, such as pioneer (Australia is a recognised pioneer in this sphere of legal regulation!) changes in the regulation of digital media platforms on the example of Google and Facebook (from October 28, 2021 — Meta Platforms, Inc. in Russia, admitted as extremist organization by the Moscow Tverskoi Court), and quite specific modifications of Australian national defamation law.



Restructured information and content involvement into civil turnover
Abstract
Copyright and Related rights are designed to regulate civil turnover of the information that have been restructured by the intellectual activity. Structured information that is processed automatically and fails to be described in intellectual property terms find itself outside intellectual property law. Legal protection is extended to the information that can be submitted to the legal claims of ownership, use and disposal. Commercial use of that information receives legal and moral assessment. When the information is depersonalized, moral and legal judgments drift apart. The objects protected by copyright and by related rights are depersonalized when they are indiscriminately treated as content. Being displayed online they are vulnerable to processing without the knowledge of the right holders. The attitude towards such a processing committed by human or artificial intellect is legally the same. Primitive appropriation is legally and morally condemned. The attitude towards creative adaptation, appropriation of the aggregated information or of the results of mining is much more tolerant. We are witnessing universal trends of dealing with personal information that is far from fake proof. The flaws of technical control over Internet states try to compensate by legal remedies. Regulators’ supervision is stepped up. The liability for administrative noncompliance becomes harsher. The scope of information regulation extension is accompanied by legal constructions development aimed at the involvement of different information elements into civil turn over.



Intellectual Property Rights
The introduction into the general theory of authorship
Abstract
The article substantiates the possibility, expediency and relevance of developing the concept of the General Theory of Authorship as a metatheory of modern intellectual property law. Analyzed — in order to identify contradictions and gaps — the main provisions of the existing concept of intellectual property rights. The groundlessness of equating the means of individualization with the results of intellectual activity is substantiated, shortcomings in the current legislation on intellectual property are revealed. Correlations of the concepts “intellectual property”, “intellectual property rights”, “intellectual rights” are investigated.
The concept of the General Theory of Authorship puts the Author, that is, the subject of law, the creator, at the center of the entire ecosystem of intellectual property, and not the result of his intellectual activity or means of individualization, that is, the object of law, as the concept of intellectual property law actually does. Naturally, the change of the “starting point” inevitably changes the entire system of logical connections within this sphere, forming a somewhat different “picture of the intellectual world”.
The proposed approach allows us to formulate the basic concepts of the General Theory of Authorship, namely “author” and “object of intellectual property”, as well as concepts derived from them, to analyze the main properties of intellectual property objects, which include: intangibility, heterogeneity, human-centeredness, creativity, hermeneuticity.
The existing systems of legal protection of intellectual property objects implicitly imply the existence, in addition to the Author, of another subject, without which an intellectual property object cannot take place as an object “for others”, — the one who recognizes a technical solution as an invention, packaging as an industrial design, and a text, image or three-dimensional object is a work of science, literature or art. In the case of the objects of the registration system, such a subject is the patent office, in the creative system — the user, the consumer. The article substantiates the thesis about the “co-authorship” of the user in the creation of an object of intellectual property as an object “for others”.



Author’right to self-quote among other author’s rights
Abstract
The article analyzes the problems associated with the reproduction in scientific works of fragments from previously published studies, which received the name “self-quoting” or “self-plagiarism” in the doctrine. Exploring the legal essence of the right to such reproduction, the authors prove that it is a personal non-property right of the author, arising from the content of the constitutional right to freedom of literary, artistic, scientific, technical and other types of creativity.
With the introduction of a total check of the level of originality of submitted scientific works, the fragments of works previously published by the author contained in them are regarded as “borrowed”, which becomes an obstacle to the admission of dissertations for defense. According to the authors, the denial of the possibility of using excerpts from previously published scientific articles in the dissertation means that the applicant is required to conduct several studies: firstly, in the form of a dissertation, and, secondly, in the form of scientific articles related in content to the chosen issue, which contradicts the logic of scientific research and negatively affects its results.
Much attention is also paid to the characterization of the use by the author of fragments of his own texts from early works in scientific articles and monographs without reference to the source, which violates the provision enshrined in paragraph 1 of Art. 1274, the norms of scientific ethics and deprives readers of such a work of the opportunity to compare the original and presented author’s texts and identify the presence or absence of novelty in the latter.
After analyzing the judgments presented in the modern doctrine regarding the boundaries and rules of the competence in question, the authors formulate the following conclusions: firstly, about the lexical inconsistency of its nature with the term “self-plagiarism”, in connection with which they propose to call such reproduction “unfair self-quoting”, and, secondly , about the absence of bad faith of the author in all cases when the fragments of previous works reproduced by him are accompanied by an indication of the original source. It is proved that in most cases such a reproduction does not indicate the author’s dishonesty, his laziness or desire to mislead readers, but his scientific consistency, devotion to the scientific ideas defended and the desire to attract new supporters to them.



Usage of the photos: how to not violate the rights of the photographer and other rightholders
Abstract
Photos are actively used in information and telecommunication networks. They add information content to the message, promote advertising and promotion of goods and services, allow you to record facts and even serve as evidence in court. With the expansion of the digital medium, the availability of photographs has increased, and the digital format has made them easier to reproduce. As a result, the number of cases of misuse has increased. In the absence of due diligence and inattention in relation to legislation, including copyright law, the offenders may be, including the persons depicted in the photographs, or the rightholders to the objects depicted in the photographs. When creating the article, in particular, the methods of analysis and synthesis, the systematic method, the formal-logical method, etc. were used. The article analyzes the provisions of the legislative acts of the Russian Federation and foreign countries regarding the rights to photographs, as well as law enforcement practice. The article focuses on the creative activity of the photographer, discusses the issues of citation and making changes to photographs.



Artificial Intelligence Law
Artificial intelligence and authorship of intellectual property
Abstract
The appearance of the extremely powerful artificial intelligence chatbot “ChatGPT” in late 2022 has made urgent the finding of solutions to the questions of the authorship and protectability of works created with the aid of artificial intelligence. These questions are particularly acute in the areas of copyright and patent law where human creativity traditionally has been a requirement for protection. The present article discusses these issues in the light of experiments with ChatGPT.


