[Guest post] The presumption of authorship vs the deposit of the work in a recent Russian Supreme Court decision

The IPKat is happy to host the following guest post by Katfriend Konstantin Voropaev on a recent decision of the Russian Supreme Court on the proof of authorship under Russian law. Here’s what Konstantin writes:

Last week ago, the Supreme Court of the Russian Federation issued a far-reaching decision on authorship and proof thereof. It is said that the deposit of a work in the Register of the Russian Authors' Society does not in itself confirm the right of authorship and does not constitute a guarantee of authorship. While the plaintiff referred to the register of the Russian Authors' Society, the defendants referred to the register of the World Intellectual Property Organization, where other authors are indicated. Three judicial instances felt that this did not refute the presumption of authorship, and thus the plaintiff was found to have successfully proved his exclusive rights. The Supreme Court of the Russian Federation took, however, a different position on this dispute.

The plot of the case

An entrepreneur filed a statement of claim with two companies for the protection of exclusive rights to works of applied art (wooden construction toys). He requested that the companies admit they were violating his exclusive rights, and also that the companies be prohibited from offering for sale the goods with images of wooden toys.

The first instance satisfied the claim for the specified demands. The defendants failed to appeal the decision in the appeal and the cassation instances.

The Supreme Court decided that the case should be returned for a new trial to the first instance. It stated that registration of the work or compliance with any other formalities is not required for the emergence, exercise and protection of copyright.

The position of the Supreme Court

The Civil Code of the Russian Federation (Civil Code) provides for the presumption of authorship in the event that a person is indicated as the author on a copy of a work or in the register of computer programs or databases. Other sources confirming the presumption of authorship have not been established by the Civil Code.

The fact that the entrepreneur deposited the appearance of toys as works only confirms the existence of such objects of copyright at the time of deposit, but not the right of authorship to these objects. The authorship of a specific person can only be confirmed by evidence establishing the fact of the creation of a work: testimony, publications, drafts, and evidence based on the establishment of the author's creative style.

The deposit of a work is a voluntary procedure not provided for by law, with which the law does not link the occurrence of any consequences. Deposit only confirms the existence, at a particular point in time, of a copy of a specific work. It is also important that the presumption of authorship established by civil legislation is not associated with the fact of depositing a work.

So is it the author or not?

In the course of this legal battle, the defendants noted that the plaintiff confirmed his authorship in relation only to the works, which were deposited in 2012. This evidence immediately gave rise to doubts about the truth of the plaintiff's claims, since such toys have been known to consumers for more than 20 years. In the database of the World Intellectual Property Organization, the defendants managed to find patents for industrial designs of the period spanning 1970-1990 on toys presented by the plaintiff. However, the courts dealing with the three instances did not notice these arguments and were guided only by the presumption of authorship.

Moreover, the Court found that the plaintiff’s official website had indicated, up until 2012, that he was only an importer of wooden construction toys, after which he added information about authorship. The defendant had attached the screenshots to the case file, but this evidence was also considered by the lower instances. It seems even stranger that the courts at first, appeal and cassation instances did not assess the data from the register of the World Intellectual Property Organization, which states that the copyright holder of the wooden constructors is a Chinese company, and the plaintiff is not among the authors of the design.

Legal outcomes and perspectives

This precedent once again raises the acute issue of the evidentiary power of the deposit and the credibility of this institution in Russia. In some cases, courts have accepted a certificate of deposit as evidence of attribution, but only in combination with other documents. At the same time, it is fair to assume that confirmation of the authorship of a certain person with the help of a certificate of deposit is not possible, since depository organisations do not verify the fact of creation of the deposited work by the person who applies for such a service.

From a practical point of view, it is important that the Supreme Court indicated the possibility of using digital methods of attribution, e.g. the plaintiff's email correspondence with counterparties and metrics on the date of the file creation, if the design of the object was created on a computer.

It appears that it does not follow from the judicial acts that the lower instances investigated any other evidence of authorship. To create a convincing position, one needs to provide some evidence, especially when things are not so simple. In this case, the open sources obviously contained information about the authorship of other persons.

As mentioned, the case has been sent for a new consideration to the court of first instance. The further course of the case, most likely, will provide answers regarding the following questions: How refutable is the presumption of authorship of the plaintiff? What efforts of the defendant are enough to refute said presumption? Eventually, the final decision will have a significant effect on the authorship legal regulation in Russia and possibly put an end to the issue of authorship rights’ deposit.