The international Conference
«Problems of protection of intellectual property»
Organized by the Russian academy of justice took place in Moscow on March,
Judges of the Supreme and Higher Arbitration
Courts of the Russian Federation, representatives of judicial bodies of
Russia, representatives of the State Duma, the federal ministries and
the departments that are dealing with the problems of protection of intellectual
property, representatives of law enforcement bodies, the scientific organizations
and the professional organizations of experts, authors and legal owners
participated in the Conference.
In the work of the Conference there also had taken part the legal adviser
of the guild of experts – “The National Organization of Art Experts” –
At the Conference the problem of judiciary
practice of the solution of disputes about the infringement of copyrights
caused by falsifications of the products of fine arts was discussed for
the first time in the domestic practice.
A special problem is that the new type
of falsifications, so-called "renaming", which consists in alteration
of the pictures of the West-European artists of the XIX - beginning of
the XX century into hundreds times more expensive pictures of Russian
artists of the same period received a wide circulation in Russia nowadays.
The situation was commented by legal adviser of NOEXI - Matvey Markov
in his report:
- Russia is the participant of the Bern convention of 09.09.1886 about
protection of literary works and works of art, and the World convention
of 06.09.1952 about the copyright. There is the protection of copyrights
of foreign authors in all territory of the Russian Federation according
to the law «About the copyright and the adjacent rights". At alteration
of the original work with a change of a name of the artist, the infringement
of such rights of the European authors as a copyright and a right of a
name is evident. In similar cases the rights are not limited by any limitation
period and belong to successors of the author, or - at their absence –
to the corresponding states. Therefore it is possible to assume, that
in the nearest future the numerous judicial claims of representatives
of the European states about protection of reputation of authors of "renamed"
pictures should appear.
The copyright is valid during seventy
years after the death of an artist. Many well-known nowadays Russian artists
worked in the first half of the XX century. The rights of the successors
of the exclusive property rights are broken by forgery of the products
of these artists.
In many cases the artists and their successors possess the rights which,
being unknown to them, remain without any application. Among them there
is in particular, such special right of authors of products of the fine
arts as «the right of consequences» (Item 2 of the Clause 17 of the Law
"About the copyright and the adjacent rights"). The law provides,
that after transition of product from the author into the property of
other person, the author has the right to get a compensation at a rate
of 5 % from the price in each case of subsequent resale if the price exceeds
previous not less than by 20 %. Such right is valid in a case of public
resale of product at auction, gallery or in a shop.
At the Conference some actual problems
of judicial examination of products of fine arts were discussed.
According to the legislation, the expert is the person possessing the
special knowledge and appointed in the order stipulated by the law.
The expert bears the responsibility for evidently false conclusion in
conformity with the clause 307 of the Criminal Code of the Russian Federation;
he is warned about it by court and gives a subscription. Thus the expert
has the right to refuse giving the conclusion concerning the work of art
which lies outside the limits of his special knowledge and also in case
the materials presented to him are insufficient for giving the conclusion.
At first sight, the right of refusal of carrying out an examination, in
a sufficient measure protects the expert. However in a context of new
tendencies of falsification the problems are obvious.
So at carrying out a judicial examination of product under suspicion of
being «renamed» (the West-European picture into Russian), the expert can
get into a complicated position, as the probability of a mistake repeatedly
increases. And the mistake admitted can be interpreted, as well as giving
an obviously false conclusion. The experts-art historians recognize that
falsifiers have outstripped them in the certain sense. It is abundantly
clear, that in process of falsification of products of fine arts a plenty
of professionals-art historians of a high enough level are involved, as
well as the artists and restorers in Russia and abroad.
It seems that in order to prevent mistakes of experts, at the purpose
of examination if it is executed for courts and other bodies, it is necessary
to establish the complex examination including without fail both technological
and art historical researches. And, for example, at carrying out the examinations
of products of Russian realistic art of the second half of the XIX - the
beginning of the XX century it is expedient to appoint not only the expert-art
historian of Russian art, but the expert-art historian of the western
art of the same period also. It is obvious, that none expert-art historian
is all-round educated, and its involving to examination is senseless without
taking into account its real knowledge, skills and reputation.
Matvey Markov had informed, that the help
to courts and other bodies that are appointing the examinations of products
of the fine arts, could be rendered by the " National Organization
of Art Experts " (NOEXI), recently created in Moscow. It has united
the leading Russian experts. Possessing the sufficient information about
the majority of experts in the field of art, NOEXI could recommend the
courts by their inquiry the experts with necessary qualification and specializations
in each specific case.