PROBLEMS OF INTERNATIONAL LEGAL PROTECTION OF COPYRIGHT IN PHOTOGRAPHIC WORKS

Photographs began to be considered as the result of intellectual activity both in international and national legislation later than other types of copyright objects, the reason for which should be recognized the widespread perception in the mass consciousness of the process of photography as not having a creative nature [6, p.134]. By the beginning of the twentieth century the question about the legal nature of photography and the possibility of its recognition as an object of copyright was debatable. So, S. A. Belyatzkin believed that photography as a result of the mechanical process of displaying a certain image on a material medium can not be recognized as a result of intellectual activity [1, p.11]. In turn, in the German legal doctrine there was an opinion on the expediency to extend to photography the provisions of copyright law without regard to the recognition of photography as its independent object or a kind of artistic work.

Today both on doctrinal level and on the level of international and national legislation the creative nature of photography was confirmed based on the thesis about the autonomy of photographer’s choice of material, subject and shooting situation and further assessment of pictures from the aesthetic point of view, in what the nature of photographer’s intellectual work finds its external expression [5, p. 73].

On the international legal level photography was singled out as an independent object of copyright only in the third edition of the Berne Convention of 1908. Adoption of the new edition of the Convention, in its turn, served as a prerequisite for unification and harmonization of domestic law in a number of countries.

In 1973 the USSR became a party to the Universal Copyright Convention, whereupon the Civil Code of the RSFSR of 1964 was amended with the aim to establish a legal regime for photographs as objects of copyright. During the subsequent development of the civil legislation of the Soviet Union and Russia the term of legal protection of photography was extended to 70 years after the death of the author [4].

In 1994 the Russian Federation joined the 1971 version of the Universal Copyright Convention, and in 1995 it became a party to the Berne Convention for the Protection of Literary and Artistic Works. Russia’s participation in these agreements was the result of the development of domestic legal norms for copyright protection. Since January 1, 2008 the legal regime for photographs as the objects of copyright is determined in accordance with Part 4 of the Civil Code of the Russian Federation, which provides for the recognition of the following rights of the author of photographic work – the right to name, copyright, right of disclosure of the work, the right to withdraw it and protect the reputation, as well as the right to reproduce the photograph, its distribution, public display and change of its form. The term of legal protection of a photograph is 70 years after the death of its author.

However, at the level of both international and national Russian law, a number of problematic issues of legal regulation of the protection of photographs as objects of copyright remain. First of all, attention is drawn to the lack of a unified classification of photographic works, which complicates the definition of the corresponding work as an object of legal protection and the legal regime of its protection. Paragraph 1 of Article 2 of the Berne Convention contains a reference to the division of artistic subdivisions into protected and unprotected, so it seems appropriate to subdivide photographic works into unprotected ones, with the inclusion of photographs created without human participation, such as pictures of automatic surveillance cameras, among the unprotected ones. Moreover, there is no unified definition of photography in the international acts on copyright protection, which also entails difficulties in applying legal measures for the protection of photographic works, especially in cross-border relations. The wording of works expressed in a manner similar to photography, both internationally and domestically, also needs to be amended. Taking into account the content of international legal norms, it seems that such works should include alterations of photographs, slides and films, which, as E. P. Gavrilov points out, imply a discrete perception of the information reflected in them, thus differing from audiovisual works [3, p. 92], and stereophotography