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INHERITANCE ISSUES OF NON-PROPERTY (MORAL) RIGHTS OF INTELLECTUAL PROPERTY
Mamaraimova G.
Senior Lecturer, Department of Civil Procedural аnd Economic Procedural Law of Tashkent State
University of Law ID: 0000-0002-2325-1350
Abstract
The question of whether or not the inheritance of intellectual property, especially personal non-property rights, is inherited is one of the unresolved and unresolved issues today. This article analyzes the different approaches to the inheritance of personal non-property rights to intellectual property, the content of the legal norms on the inheritance of these rights and on what basis the heirs use them in practice.
Keywords: objects of intellectual property, results of intellectual activity, means of reflecting the specific features of goods, works, services, personal and non-property rights, exclusive law, exclusive law.
The first analyzing the role of moral rights in relation to intellectual property in the system of inherited objects, we considered it necessary to dwell on the concept of moral rights in relation to intellectual property.
The authors of the results of intellectual activity have personal and property rights to these results. The owners own only property rights to funds that reflect the characteristics of goods, works, services. This means that there are only personal moral rights in relation to the results of intellectual activity, and we will consider the issue of their inheritance.
Personal non-property rights in relation to the results of intellectual activity O. Okyulov describes it as follows. The personal and non-property rights of the author in relation to the results of intellectual activity are the exclusive rights of the author to recognize, strengthen and defend his position of the creator, which has no property value, and these rights belong only to the author. and can be passed on to someone else. The content and scope of individual rights are determined individually for each intellectual activity.
For example, the scope of personal rights of an author in relation to objects of copyright is wide, that is, it is copyright, property right, and so on. It is narrower than some intellectual property. In particular, the object of personal non-property right in relation to breeding achievements is recognition as the author of intellectual property [1, 22, 23, 24, 25].
In O.Okyulov's scientific works [2, 22, 23, 24, 25, 26] it is noted that personal non-property rights in relation to the results of intellectual activity are not transferred to other persons. Indeed, according to Article 1113 of the current Civil Code of the Republic of Uzbekistan on the composition of inheritance, personal non-property rights not related to property rights are not included in the inheritance. It is obvious that according to our national legislation, personal and non-property rights to intellectual property are not part of the inheritance.
Another civilist scientist, S.A. Sudarikov, argues that personal and non-property rights to intellectual property are not inherited. According to him, in the legislation of most countries, personal non-property
rights to intellectual property belong only to the author or executor, they are not inherited, only property rights are inherited [4].
Nevertheless, some civilizations promote the theory that personal and non-property rights to intellectual property can be inherited. In particular, M. Kuznetsov [5], analyzing the Russian legislation in this regard, puts forward the following. According to him, exclusive property rights to intellectual property are transferred on the basis of universal legal succession. This is evidenced by the interpretation of Articles 18, 150, 1241, 1283 of the Criminal Code of the Russian Federation. It also points out that the publication and recall of a work, in turn, raises the issue of whether the rights pass to the heirs. In fact, in world practice we may encounter enough cases of announcing the result of intellectual activity after the death of its creator [6].
According to A.P. Sergeev, the heirs can publish the work after the death of the author. If the author's lifetime has not been published and the publication of it does not contradict the will of the author, the right to publish is considered to be inherited because it is not prohibited by law. It follows that the right to publish a work is inherited not as a separate right but as a set of property rights [7]. Another civilist E.A. Morgunova also puts forward the idea of inheriting the right to publish a work [8].
Also, According to M. Regen, while the right to publish a work and the inviolability of a work are of a personal nature, they are inherited [9]. In the case of heirs, they not only exercise these rights, but also protect them. In fact, the right to publish a work, recall a work and make changes or additions to it while preserving the integrity of the work is a personal right of the author and is inseparable from it. However, the work can be published after his death. In this regard, the right to obtain a patent for an invention, utility model, industrial design and selection achievement and the exercise of this right by the heirs should also be recognized. Indeed, in accordance with the third part of Article 1033 of the Civil Code of the Republic of Uzbekistan, the owners of the rights to the means of reflecting the specific features of the participants of civil proceedings, goods, works or services have
property rights to these means. However, whether the right to obtain a patent is in fact a property right or a personal right of the author must first be assessed.
As for the place of personal non-property rights in the right of inheritance in relation to the results of intellectual activity, according to J. Jenkins, the right of inheritance and the right of intellectual property collide only during the period of absolute rights [10]. If we take into account the views on the inheritance of individual rights to intellectual property, we can observe that the intersection of inheritance law and intellectual property right occurs only during the term of absolute rights. Above, we have given the opinion that the right of scholars to recall a work is exercised by the heirs, but it is not said whether the heirs exercise this right at any time or only for a certain period of time. As J. Jenkins said, the heir can recall the work only during the period in which the legal protection of the work exists.
Following the succession of moral rights, there is second controversial aspect. This is the question of whether it is possible to publish a work under a pseudonym when publishing the work after the death of the author, and it is difficult to find a clear answer in national legislation. That is, the author has published all his works under a pseudonym during his lifetime, and the question of whether it is possible to publish a work under a pseudonym after the death of an author whose work has not been published during his lifetime, also does not have a clear solution. In this regard, O. Sushkova also argues that if the author has published works of a lifetime under a pseudonym or anonymously, the author's name may be published by his heirs [11].
In the legislation of the CIS countries, including our national legislation, the right of the author to a name is a personal non-property right, which is inseparable from the author and is not transferred to anyone. Announcing the real name of the author who created under the pseudonym is an exercise of this right. The Civil Code of the Republic of Uzbekistan does not provide this right to heirs [12]. The law gives heirs only the right to protect personal and non-property rights [13]. Also, according to the legislation of the Russian Federation [14], the name of the author is an inalienable and inalienable right. The issue of inseparability of personal non-property rights from the author and the fact that they can be used by heirs is more clearly defined in Georgian law. In particular, the fourth part of Article 17 of the Law of Georgia "On Copyright and Related Rights" stipulates that the author's personal non-property rights may not be transferred during his lifetime, and their use after the death of the author shall be in accordance with the law [15].
Under French law, personal non-property rights in respect of intellectual property are called "moral rights". According to Article L121-1 of the French Intellectual Property Code, personal non-property rights in respect of intellectual property are eternal, inviolable and inseparable from the author. However, they can be passed on to heirs. In addition, their use may be bequeathed [16].
Article L121-1 of the French Intellectual Property Code provides for the inheritance of the right to publish
a work that the author has not published during his lifetime. According to him, the right to publish a work that the author has not published during his lifetime is exercised by the executor or performers appointed by the author. Unless otherwise specified by the author, if the performer has not been appointed or the performer has died, the work shall be published by the author's descendants or by the surviving author's spouse who was not married before his death and who did not marry another person after the author's death.
The third part of Article 1268 of the Russian Civil Code stipulates that after the death of the author, the work is not published in his life and, unless it contradicts the will of the author, the exclusive rights to the author's work are declared by those who have it. However, the inheritance of exclusive rights to an unpublished work is itself a matter of debate.
The greater the debate over the transfer of the right to publish a work to the heirs after the death of the author, the greater the debate over the right to inherit the right to recall the work after the death of the author. According to V. Kosinkov, the publication of a work and its recall are part of the same right [17].
Based on the debate over the right to publish a work that was not published during the author's lifetime and the transfer of the right to recall a work to heirs, we can divide the views of scholars on this into three groups.
The first clause states that the right to publish a work that has not been published during the author's lifetime and the right to recall the work is inherited by the heirs.
The second clause is that the right to publish a work that has not been published during the author's lifetime is inherited, and the right to recall the work ends with the author's death.
The third point is that the right to publish a work that was not published during the author's lifetime and the right to recall only works published by the heirs pass to the heirs.
The fourth clause passes only to the executor of the inheritance, or to the heir to whom the right is given in the will, who has the right to publish the work which has not been published during the author's lifetime and the right to recall the work.
In our opinion, the right to publish works not published during the author's lifetime can pass to his heirs, and the right to recall a work can pass to heirs only if such rights are understood by legal means that reflect the will of the testator. This is because the rights to publish a work and to recall a work are interrelated. For this reason, heirs can only recall works they have published. The right to recall works published by the author is not inherited because the works were not published by the heirs. However, the right to recall works published during the lifetime of the author may be transferred to the heirs in cases of legal means (will, contract, etc.) that reflect the will of the author. In this case, if the right to recall is directly limited by the author (in legal means (will, contract, etc.) that reflects the will of the author), the right to recall does not pass to the heirs.
Another debate over the inheritance of personal property rights in relation to intellectual property rights is whether the heirs can make changes to the work after the author's death, whether it is an inheritance of personal non-property rights, or whether making changes to the work is an integral part of these exclusive rights. in the question of whether the absolute right passes to whom it passes.
Let's take a look at Bliznets and Leontev's views on whether an absolute right holder can allow another person to make changes to a work after the author's death. According to them, if a person who has obtained the consent of the owner of the right makes changes to the work, the executor of the will, to whom the work was granted the right of inviolability, can sue. In this case, the court refuses to satisfy the claim. The reason is that the person who made the change to the work carried out the will of the author of the work. That is, he actually obtained consent from the author. However, the author also stressed the importance of evaluating the changes made to the work in this situation in terms of the nature of the changes and whether they did not undermine the author's intention and the integrity of the perception of the work. The person who made the change to the work also admits that he will be held accountable before the executor of the will if he violates the integrity of its perception [18].
Another dispute over the inheritance of personal-non-property rights to intellectual property is that under national intellectual property law, there are no personal-property rights to the owners of the means of individualization. However, the inheritance of patent rights is set out in our legislation.
Pursuant to Part 11 of Article 5 of the Law of the Republic of Uzbekistan "On Inventions, Utility Models and Industrial Designs", the right to obtain a patent for an invention, utility model and industrial design is inherited [19]. Also, Article 6 of the Law of the Republic of Uzbekistan "On Selection Achievements" stipulates that a patent for a selection achievement may be obtained by the author's successor [20]. In this case, the bride inherits the right to obtain a patent. There is also the question of whether the right to obtain a patent is a property right or a personal non-property right of the author. Indeed, the law stipulates that there are no personal non-property rights against the owner of the means of individualization [21]. If we analyze the right to obtain a patent, it is in fact the personal right of the author (except for work related to the service or order) and is inseparable from it. The reason is that the author's right to obtain a patent is not transferred or transferred. That is, we can see that this right is related to the identity of the author.
From the above analysis, we can conclude the following. Personal-non-property rights in respect of intellectual property are transferred to the heirs.
REFERENCES:
1. О. Окюлов. Интеллектуал мулк хукуки рисола. - Тошкент, И. Муминов номидаги Фалсафа ва хукук институти, 2005 йил. - Б. 17-18; Окюлов О. Интеллектуал мулк хукукий макомининг
назарий ва амалий муаммолари //Тошкент: ТДЮИ, 2004.-Б. 267. - 2004. - Т. 268.
2. О. Окюлов. Узбекистан Республикаси Фукаролик кодексига шархлар. 3-жилд. - Тошкент, BAKTRIAPRESS, 2013. - Б. 374; Интеллектуал мулк хукуки рисола. - Тошкент, И. Муминов номидаги Фалсафа ва хукук институти, 2005 йил; Окюлов О. Интеллектуал мулк хукукий макомининг назарий ва амалий муаммолари //Тошкент: ТДЮИ, 2004.-Б. 267. - 2004. - Т. 268.
3. Узбекистон Республикаси Фукаролик кодекси 1113-моддаси. - Тошкент, Адолат, 2021 йил. - Б. 457.
4. С.А.Судариков. Интеллектуальная собственность. - Москва, Издательство деловой и учебной литературы, 2007. - С. 619-621 (Sudarikov C.A. Intellectual property. - Moscow, Publishing house of business and educational literature, 2007. - P. 619621).
5. Интеллектуал мулк объектларининг мерос масалари буйича Россия конунчилиги билан Узбекистон конунчилиги жуда ухшаш (2020 йил январь холатида).
6. List of works published posthumously // URL: https://en.wikipedia.org/wiki/List_of_works_publishe d_posthumously
7. А.П.Сергеев. Право интеллектуальной собственности в Российской Федерации. Учебник. - Москва, 2004. -С. 181.
8. Е.А. Моргунова. Авторские правомочия: тиория и практика.
9. В. Косникова. Наследование интеллектуальных прав. Диссертация на соискание ученой степени кандидата юридических наук. -Саратов - 2017. -С. 224(50).
10. В. Косникова. Наследование интеллектуальных прав. Диссертация на соискание ученой степени кандидата юридических наук. -Саратов - 2017. -С. 224(50).
11. О. Сушкова. Исключительное право на результаты интеллектуальной деятельности в составе наследства супругов. Семейный Бизнес В Правовом Пространстве России. Монография. -Ответственные редакторы И.В. Ершова, А.Н. Левушкин. Москва, 2020. -С. 426-442.
12. Article 1051 of the Civil Code of the Republic of Uzbekistan. // Bulletin of the Oliy Majlis of the Republic of Uzbekistan, 1996, No. 11-12, Article 1;
13. Article 36 of the Law of the Republic of Uzbekistan "On Copyright and Related Rights", the author's personal non-property rights are not inherited. The author's heirs have the right to protect these rights. These rights of the heirs are not limited in time.
14. Article 1051 of the Civil Code of the the Russian Federation // URL: http://www.consultant.ru/document/cons_doc_LAW_ 64629/
15. Law of Georgia "On Copyright and Related Rights" // URL: https://internet-law.ru/law/int/nation_sng/doc004.pdf
16. Intellectual property code of Franch // Электрон манба:
https://www.wipo.int/edocs/lexdocs/laws/en/fr/fr467e n.pdf
17. Косинков В.В Наследование интеллектуальных прав: дис.. канд. юрид. наук.: 12.00.03/ Косинков Владимир Валериевич; [Место защита: Са-рат. Гос. Юрид. акад.] - 224 c. 1
18. И.А. Близнец ва К.Б. Леонтьев. Авторское право и смежные права. Учебник. - Москва, Издательство "Проспект", 2014. -С. 416.
19. Law of the Republic of Uzbekistan "On inventions, utility models and industrial designs" of the Republic of Uzbekistan. // Bulletin of the Oliy Majlis of the Republic of Uzbekistan, 2002, No. 9, Article 158;
20. Law on "Selection Achievements" of the Republic of Uzbekistan. // Bulletin of the Oliy Majlis of the Republic of Uzbekistan, 2002, No. 9, Article 156;
21. Article 1033 of the Civil Code of the Republic of Uzbekistan. // Bulletin of the Oliy Majlis of the Republic of Uzbekistan, 1996, No. 11-12, Article 1;
22. Мамараимова Г. М. Проблемы наследования интеллектуальных прав доменных имен по законодательству Республики Узбекистан //Журнал правовых исследований. - 2020. - Т. 5. - №. 2.
23. Мамараимова Г. М. ПРОБЛЕМЫ НАСЛЕДОВАНИЯ ИНТЕЛЛЕКТУАЛЬНЫХ ПРАВ ДОМЕННЫХ ИМЕН ПО ЗАКОНОДАТЕЛЬСТВУ РЕСПУБЛИКИ УЗБЕКИСТАН //AGRICULTURAL SCIENCES. -С. 44.
24. Мамараимова Г. М. ПРОБЛЕМЫ НАСЛЕДОВАНИЯ ИНТЕЛЛЕКТУАЛЬНЫХ ПРАВ ДОМЕННЫХ ИМЕН ПО ЗАКОНОДАТЕЛЬСТВУ РЕСПУБЛИКИ УЗБЕКИСТАН //Znanstvena Misel. - 2019. - №. 102. - С. 44-48.
25. Мамараимова Г. М. Проблемы наследования интеллектуальных прав доменных имен по законодательству Республики Узбекистан //Журнал правовых исследований. - 2020. - Т. 5. - №. 2.
26. Мамараимова Г. М. ПРОБЛЕМЫ НАСЛЕДОВАНИЯ ИНТЕЛЛЕКТУАЛЬНЫХ ПРАВ ДОМЕННЫХ ИМЕН ПО ЗАКОНОДАТЕЛЬСТВУ РЕСПУБЛИКИ УЗБЕКИСТАН //AGRICULTURAL SCIENCES. -С. 44.
27. Мамараимова Г. М. ПРОБЛЕМЫ НАСЛЕДОВАНИЯ ИНТЕЛЛЕКТУАЛЬНЫХ ПРАВ ДОМЕННЫХ ИМЕН ПО ЗАКОНОДАТЕЛЬСТВУ РЕСПУБЛИКИ УЗБЕКИСТАН //Znanstvena Misel. - 2019. - №. 102. - С. 44-48.
28. Мамараимова Гулрух ПРАВОВЫЕ ПРОБЛЕМЫ ТРАНСГРАНИЧНОГО НАСЛЕДОВАНИЯ ИНТЕЛЛЕКТУАЛЬНОЙ СОБСТВЕННОСТИ // Review of law sciences. 2020. №Спецвыпуск. URL: https://cyberleninka.ru/arti-cle/n/pravovye-problemy-transgranichnogo-nasledo-vaniya-intellektualnoy-sobstvennosti (дата обращения: 28.06.2021).
29. Мамараимова Г. М. ХИЗМАТ КУРСАТИШ БЕЛГИСИГА НИСБАТАН МУТЛАК; ДУКУКЛАРНИНГ МЕРОС БУЛИБ УТИШИ МАСАЛАЛАРИ //ЖУРНАЛ ПРАВОВЫХ ИССЛЕДОВАНИЙ. - 2019. - №. SPECIAL.
30. Xayrulina A. B. International law: legal aspects of the protection of women's rights in UN system //Review of law sciences. - 2018. - Т. 3. - №. 1. - С. 14.
Xayrulina A. B. International law: legal aspects of the protection of women's rights in UN system.
31. Хайрулина А., Хабибуллаев Д. Медиация как новый вид альтернативных способов разрешения споров в Узбекистане //Общество и инновации.
- 2021. - Т. 2. - №. 3/S. - С. 494-501.
32. Khayrulina A. Legal aspects of the protection of women's rights within UN system //TSUL Legal Report International electronic scientific journal. - 2020.
- Т. 1. - №. 1.
