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Copyright in technical report

Can technical report be protected by copyright? For example the Russian courts believe it can be. But unlike the USA or UK copyright law system for the Russian copyright system it was important the presence of creativity rather then originality. So, under the Russian copyright law it was necessary for the subject matter to be created with creativity, the originality was not so important for protection by copyright.

One company has won state auction for geodetic research for development purposes. The company concluded the relevant contract with state budget organisation as general contractor. The general contractor, in its turn, has concluded agreement with another company – subcontractor – for the same subject matter. As the result of all these agreements the budget state organisation should receive the technical report and the subcontractor had to provide it. The subcontractor has executed its part of obligation and sent the report to general contractor with requirement to pay for the completed work.

The general contractor (GC) has refused to pay but did not refuse to use report provided by the subcontractor (SC). The GC has informed the SC that after duly examination of technical report there were found mistakes making the use of report practically impossible. The SC has made necessary amendments and sent the corrected report back to the GS. The GS has refused to accept the amended report again. Moreover, the GS has notified the SC that the agreement between GS and SC is terminated and there will be no payment for the work completed by the SC because it was not accepted by the GS.

Meanwhile the GS has provided the state budget organisation with technical report, which was almost completely identical to the technical report completed by the SC. The GC and SC have singed no documents in order to close the deal. In other words, the GS has only sent to SC notification on termination of agreement. The SC has filed a suit for copyright infringement in technical report and seeking compensation for exploitation of such report without proper permission. The GS believed there couldn’t be any copyright in technical report. The SC has also involved an expert who has provided the court with expertise confirming that the SC’s report, delivered to the GS, and GS’s report, delivered to the state organisation, are almost totally identical.

The court has underlined that under the agreement the property rights in materials made and created by the SC are to be transferred to the GS only after signing the act of acceptance by both parties (actually by the GS). The act is to be signed in mostly cases before the payment in order to have opportunity to force it in court. But there is a little detail. Under current Russian law, the property rights and intellectual property rights are different. In other words, if in you contract it stands property rights, it does not mean that the wording includes IP rights. For example, in UK IP objects are to be treated like movable property for the purposes of dealing and contracting. In Russian law there is not legal certainty for IP objects.

The court of first instance has sided with SC and confirmed the copyright in technical report and satisfied the CS requirement of monetary compensation. The court has referred to the practice review issued by the Supreme Court. Under this review the geodetic and cartographical products, materials and data are the objects of intellectual property if the process of their creation is both of technical and creative character. Moreover the technical report is copyrighted as complex of textual description, schemes, graphics, tables and other information derived during the work.

The court of first instance has concluded as long as report to the addition of technical part also contains profound descriptive part with multiple characteristics of described territory, forming inter alia by subjective point of view of the the person making the report. Therefore the report is the result of person’s intellectual activity created by the creative work. Therefore the creation of technical report is the process both of technical and scientific nature, i.e. is of creative nature. Therefore the report is the object of copyright. Therefore when the GC has plagiarised the SC’s report it has infringed SC’s copyright in technical report in question.

The court of first instance has satisfied the claimant’s requirements concerning the copyright infringement and payment of monetary compensation. The GS has filed appeal and tried to undertake the second expertise of technical report in order to challenge the conclusions of first expertise that both report are identical. The appeal has refused to do it and made conclusion that there is no copyright in technical report in question because the materials presented to the court does not contain evidence of report’s creative nature. The form, in which the result of work has been presented in this case, does not have independent value apart from content defined by the contract conditions.

The appeal did not see in technical report any criterion of IP object. Therefore there was no ground to satisfy the claimant’s requirements. The SC has filed cassation to the IP court. The IP court has referred the case to the appeal to review it de novo. The IP court has referred to the Russian law on geodesy and cartography. The IP court’s conclusions are the same as conclusions of the first instance. The IP court has also noted that the appeal can’t reverse the first instance’s decision only because it is not agreed with assessment of case circumstances given by the first instance. The appeal, unlike the first instance, did not provide any motive of its decision as well law provisions justifying its conclusions.

So the case moved again to the appeal, where the parties have filed motion for settlement. But the appeal has changed its mind and decided that technical report in question is object of IP and copyright and GS’s “plagiarism” of SC’s technical report is copyright infringement as well as it has been done without proper permission. The appeal has ordered GS to pay SC monetary compensation. The parties moved to cassation again and have been denied. The Supreme court has made the same.

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