The RF CC introduces the notion of “the right to the inviolability of a work”, which is somewhat broader than the currently existing notion of “the right the pro tection of an author’s reputation” (Article 1255 of the RF CC). Thus, in accordance with Article 1266 of the RF CC, it is not allowed, without the author’s consent, to make changes, abridgements or additions to his or her work, the augmenting of a work by illustrations, a preface, an afterword, commentaries or explanations. Arti cle 1267 of the RF CC speaks of the inviolability of a work which is protected indefi nitely. The lawmakers have for the first time determined the procedure for the heirs Annexs or other legal successors of an author introducing changes, abridgements or addi tions into a work, as well as the procedure for the publication of the works of a de ceased author. In this connection it is envisaged that such actions can be executed by the aforesaid persons only if this is not contrary to the author’s desire, explicitly expressed in writing (e. g., in a will, letters, diary, etc.). (Article 1266 of the RF CC).
Prior to the introduction of these changes existing legislation envisaged the transfer of exclusive rights by means of concession of the exclusive rights to the use of a work (by the Law on copyright and related rights), concession of a patent to an invention, a useful model, or an industrial sample (Patent Law) and conces sion of a trademark (the Law on trademarks, service marks and names of the places of origin of goods). In accordance with the Law on copyright and related rights, property rights may be transferred only under an author’s contract (Article 30 of the Law). In this connection, an author’s contract must determine the meth ods of using a work, that is, the specific rights transferred under this contract (Arti cle 31 of the Law).
For purposes of ensuring a more effective participation in the civil turnover of intangible assets, the newly introduced part of the RF CC determines the proce dure for the disposal of property rights to the results of intellectual activity and the means of individualization. Much attention is given to the characteristic and regula tion of the two main types of agreements – the agreement of the alienation of an exclusive right and the license agreement (Article 1233 of the RF CC).
Under the agreement of the alienation of an exclusive right, the exclusive right to the results of intellectual activity or a means of individualization is transferred in full (Article 1234 of the RF CC).
It should be emphasized that the RF CC establishes rather strict requirements to the content and formalization of an agreement. A non compliance with its prop erly written form or with the requirement concerning State registration entails nullity of an agreement. In an event of absence, in an agreement of an alienation of an ex clusive right for a compensation, of a clause concerning the size of compensation or the procedure for determining its size, the agreement is considered not to have been concluded. The general rules for determining a price envisaged in Article of the RF CC are not applicable in this case.
The owners of exclusive rights, if not interested in their complete and final transfer to another person, may resort to a license agreement (Article 1235 of the RF CC). Under a license agreement, one party – the owner of the exclusive right to the product of intellectual activity or to a means of individualization – grants or as sumes the responsibility to grant to the other party the right to the use of such a product or such means within the limits envisaged in the agreement.
The right to the use of the product of intellectual activity or a means of indi vidualization, if not directly stipulated in a license agreement, is not considered to have been granted. The period for which a license agreement is concluded cannot be longer than the period of effect of the exclusive right to the product of intellec tual activity or a means of individualization. If this period is not determined in a li RUSSIAN ECONOMY IN trends and outlooks cense agreement, the agreement in accordance with the general rule is considered to be concluded for the period of 5 years.
The transfer of the exclusive right to the product of intellectual activity or a means of individualization to a new holder of the right cannot serve as the grounds for making changes to or cancellation of a license agreement concluded by the previous holder of the right.
In accordance with Article 1236 of the RF CC, a license agreement can envis age that a person issuing a license to the right of use of the product of intellectual activity or a means of individualization may still preserve the right to issue a license to other persons (simple license), or may not preserve such right (exclusive li cense). If not provided otherwise by a license agreement, a license is considered to be of the simple type.
A number of norms envisaging additional guarantees for the protection of the rights of authors are introduced. In particular, it is established that no sanction may be applied to the exclusive right belonging to the author of a work or to a performer (Articles 1284, 1319 of the RF CC). For a publishing license contract an imperative rule is consolidated, whereby a publisher is obliged to begin the use of a work no later than a certain timeline established in the contract. A noncompliance with this requirement entails the possibility of a unilateral dissolution of a contract on an au thor’s initiative, without any compensation to the published of the losses resulting from it, as well as the possibility to recover from the publisher the full amount of remuneration envisaged in the contract (Article 1287 of the RF CC).
Besides, for the first time the norms are introduced envisaging the liquidation of a juridical person or an individual entrepreneur for repeated or flagrant violation of the exclusive rights to the product of intellectual activity and means of individu alization (Article 1253 of the RF CC).
In connection with the adoption of a new part of the RF CC, some changes have also been introduced in Parts I, II and III of the RF CC and other normative acts.
In particular, the Chapter “Non material benefits and their protection” in Part I of the RF CC is augmented by Article 152.1, whereby it is envisaged that the publi cation and any further use of an image of a citizen (including a photograph, as well as a videotape or a work of visual art wherein he or she is depicted) is allowed only with the consent of the aforesaid citizen. After a citizen’s death, his or her image may be used only with the consent of the children or the surviving spouse, and in absence of the aforesaid persons – with the consent of his or her parents. The in stances are listed when such consent is not necessary, in particular if the image is used for the sake of state, social or other public interests; if the image of a citizen was obtained during filming in places open for free public use or at public events (meetings, congresses, conferences, concerts, shows, athletic competitions and other similar events), except in instances when such an image represents the main object of use; or when a citizen has posed for a compensation.
Article 256 “Common ownership of spouses” in Part I of the RF CC is aug mented by the provision whereby common ownership of spouses does not include Annexs an exclusive right to the product of intellectual activity owned by the author of such a product. However, the incomes received from the use of such a product repre sent joint ownership of spouses, if not otherwise provided by an agreement con cluded between them. A similar provision concerning the ownership of each of the spouses is introduced in the RF Family Code.
The “New” RF Labor Code In late July 2006 a law was adopted whereby numerous changes were intro duced to the RF Labor Code. Changes have been made to more than 300 articles of the Labor Code, many of which are fully reworded, and some new articles are added. The majority of amendments and changes are aimed at eliminating the ex isting contradictions and imprecision in the norms stipulated in the Code.
Now the Code contains more detailed regulation of the issues concerning the local normative acts issued by employers; of the representation of the interests of workers by primary trade union organizations; of employers – physical persons; of the annulment of a labor contract; of changes in the terms of a labor contract de termined by the parties thereto; and some other issues.
New requirements have been established to the content of a labor contract. In particular, it must contain information concerning the documents confirming the identity of a worker and an employer physical person, the employer’s taxpayer identification number (with the exception of employers – physical persons who are not individual entrepreneurs), the information concerning the employer’s represen tative who has signed the labor contract, and the substantiation of his endowment with appropriate powers. Among the mandatory terms of a labor contract, the spe cific type of work assigned to the worker should be indicated. The procedure for augmenting a labor contract with additional information and terms is stipulated.
The absence in a contract of any mandatory information or term cannot serve as the grounds for recognizing a labor contract as null and void. The missing informa tion is added directly to the text of a labor contract, while the missing terms are de termined in an annex to the labor contract or in a separate agreement between the parties concluded in writing, which is considered to be an inalienable part of a labor contract.
The absence in a labor contract of a stipulation concerning a probation means that a worker is accepted without probation. In an event when a worker has actually been allowed to work without a formalized labor contract (Part 2 of Article 67), the stipulation concerning probation may be included in a labor contract only if the par ties have formalized it as a separate agreement prior to the onset of work. In addi tion to the existing limitations, no probation term is allowed for women who have children aged under one and a half years, and persons concluding a labor contract for a period under two months.
Changes have been made to the procedure of concluding a fixed term labor contract. In instances determined by the Code, it will be possible to conclude a fixed term labor contract by agreement of the parties thereto without taking into account the character and conditions of the future employment (for example, with RUSSIAN ECONOMY IN trends and outlooks retired persons or students). In accordance with the new changes, a fixed term la bor contract may be concluded with a retired person only when he or she takes up work. In the sphere of small size business fixed term labor contracts will be con cluded if the number of workers is no more than 35, including in retail trade and domestic servicing – no more than 20 (in the previous wording 40 and 25, respec tively).
If a worker has not taken up work on the day when his employment begins in accordance with the Code, the employer has the right to annul the labor contract.
In this connection, in accordance with the introduced changes, the annulment of a ям labor contract cannot deprive a worker of the right to receive provision under the mandatory social insurance program if an insured event has occurred during the period from the day of the conclusion of a labor contract to the day of its an nulment.
The list of grounds for the termination of a labor contract with regard to cir cumstances beyond control of the parties thereto has been extended, these cir cumstances being as follows: disqualification or another administrative punish ment, as well as the expiry, suspension or deprivation of a worker of a special right, if this entails the impossibility for the worker to fulfill his or her duties relating to employment; termination of an access to a state secret, if the performance of work requires such access; or vacating of a court ruling or the decision of a state labor inspectorate that a worker should be reinstated in work.
A new article is introduced, which regulates the general procedure formalizing the termination of a labor contract, whereby it is established that the familiarization of a worker with the order (or disposition) issued by the employer concerning the termination of a labor contract must require the former’s signature.
The employers who are individual entrepreneurs are charged with an addi tional responsibility, whereby they, similarly to juridical persons, are obliged to keep the labor books of their employees. Individual entrepreneurs are equated to organizations also in respect of other rights and responsibilities (the conclusion of collective labor contracts, the dissolution of labor contracts, etc.).
The notion of transfer to other work has been changed. In the new wording, the transfer to other work is understood both as a permanent or temporary change in a worker’s labor function. The notion of transfer also encompasses the change of a structural subdivision in which a worker works (if the structural subdivision has been designated in a labor contract), the continuation of work with the same em ployer, as well as the transfer to work in another locality together with the worker. In all these instances the employer will need a written consent of the employee. Ex ceptions are represented by extraordinary cases. The Code is augmented by the norm whereby on the basis of a written agreement between the parties a worker may be temporarily transferred to other work with the same employer for a period of up to one year, and in those cases when such a transfer is made in order to re place a temporarily absent worker, for whom in accordance with the law the place of work is retained, until that worker resumes work. If after the expiry of the period of transfer the former is not made available to the employee, and he or she has not Annexs demanded that it should be made available and continued to work, the contract’s term concerning the temporary character of transfer becomes null and void, and the transfer is considered to be permanent.
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