The concept and features of Internet advertising as a result of intellectual activity

Stotland Boris Igorevich ORCID: 0000-0003-3197-023X Postgraduate student of the Department of Civil Law, Kutafin Moscow State Law University 123242, Russia, Moskva, g. Moscow, ul. Sadovaya-Kudrinskaya, 9 stotland.nkl@gmail.com

In the era of digitalization, such type of advertising as Internet advertising has taken the leading positions, which is confirmed by statistical studies of the Commission of Experts of the Association of Communication Agencies of Russia. In 2020, despite the difficult economic realities of this year, only online advertising was able to show a positive trend of 4% [The volume of advertising in its distribution media in 2020 // Internet resource. URL: https://www.akarussia.ru/knowledge/market_size/id9555 (accessed 16.01.2022], and for the period from January to September 2021 – 26% [The volume of the advertising market in the means of its distribution in January-September 2021 // Internet resource. URL: https://www.akarussia.ru/knowledge/market_size/id9904 (accessed 16.01.2022)]. First of all, this became possible due to the search for new forms of advertising presentation by advertisers and advertising producers in order to more interest advertising consumers. Such forms, as is known, do not appear without the use of creative skills, and, consequently, advertising can be the result of intellectual activity and receive additional legal protection.

Federal Law No. 108-FZ of July 18, 1995 "On Advertising", which was in force until July 1, 2006, provided in Article 4 that advertising may be fully or partially the object of copyright and related rights [Federal Law No. 108-FZ of July 18, 1995 "On Advertising" // Collection of Legislation of the Russian Federation Federation, 1995., N 30, article 2864]. The key meaning here is the word "can", which means that advertising is not always an object of copyright. At the same time, there was no indication in the law that advertising in general can be the object of patent law, although this point of view is supported by some scientists ^[1]. Nevertheless, it is hardly possible to assert this about Internet advertising, since the law does not refer computer programs and solutions consisting only in the presentation of information, in the form of which Internet advertising can be implemented and distributed, to inventions (and advertising, in accordance with the law that has become invalid and is currently in force, is recognized as information [Federal Law of 13.03.2006 N 38-FZ "On Advertising" // Collection of Legislation of the Russian Federation, 2006, N 12, Article 1232, hereinafter – the Federal Law "On Advertising"]). It is also hardly possible to attribute Internet advertising to utility models and industrial designs due to the fact that it is not expressed in its form in the material world and cannot be applied in industry.

The current Law on Advertising (hereinafter referred to as the Law on Advertising), in comparison with its previous version, does not contain similar norms, which entails certain difficulties associated with the possibility of classifying advertising as objects of copyright, due to a misinterpretation of the provisions of Part IV of the Civil Code of the Russian Federation [The Civil Code of the Russian Federation (Part fourth) from 18.12.2006 N 230-FZ // The Assembly of Legislation of the Russian Federation, 2006, N 52 (1 part), Article 5496] (hereinafter – the Civil Code of the Russian Federation) (hereinafter – the Civil Code of the Russian Federation).

Proceeding from the literal content of Article 1225 of the Civil Code of the Russian Federation, in order for advertising to be a protected result of intellectual activity, it must fall under the exhaustive list of results set out in this article [Resolution of the Plenum of the Supreme Court of the Russian Federation of 23.04.2019 No. 10 "On the application of Part Four of the Civil Code of the Russian Federation" // Bulletin of the Supreme Court of the Russian Federation, No. 7, July, 2019], and correlate with the list of objects specified in paragraph 1 of Article 1259 of the Civil Code of the Russian Federation for attribution to copyright objects. At the same time, the legislator's explanation of the term "advertising" in Article 3 of the Law on Advertising as information distributed in any way, in any form and using any means, addressed to an indefinite circle of persons and aimed at attracting attention to the object of advertising, forming or maintaining interest in it and its promotion on the market, and its absence in this The list in conjunction with paragraph 4 of Part 6 of Article 1259 of the Civil Code of the Russian Federation, which establishes that messages about events and facts that are exclusively informational in nature are not objects of copyright, may raise certain doubts about the possibility of attributing advertising in general and Internet advertising in particular to protected results of intellectual activity.

Nevertheless, these provisions do not allow us to state unequivocally that advertising cannot be a protected result of intellectual activity and automatically "fall out" from copyright protection, since certain creative techniques and elements implemented in a certain form can be used in advertising to fulfill its goals and to enhance its impact on consumers. Therefore, in the presence of certain properties, which will be discussed below, advertising can be an object of copyright.

Firstly, sharing the point of view of Professor M.N. Maleina ^[2], it should be stated that advertising can meet such a criterion for the protection of copyright objects as the creative nature of the author's work, the presence of which will allow him to extend legal guarantees as an object of copyright and grant his author additional rights. In other words, an advertisement distributed on the Internet must have an author who, according to Article 1228 of the Civil Code of the Russian Federation, is recognized as a citizen whose creative work it was created by.

However, with the development of artificial intelligence technology, advertising in the form of a certain work can be created without the participation of a human author. In this regard, there is a discussion in legal science about who should be considered the author of such advertising:

1) the creator of a program working on artificial intelligence technology ^[3];

2) the artificial intelligence itself that generated the ad;

3) or an advertising work created by machine intelligence cannot have an author.

To try to resolve such a discussion, it is necessary to start from the fact that the creative nature of the creation of a work is presumed and does not depend on whether the work was created by the author himself or using technical means.

Artificial intelligence, which is not endowed with legal personality, cannot exercise the right to protect its alleged copyrights and derive any benefit from them by disposing of the exclusive right to the works created by it.

Since artificial intelligence is not endowed with legal personality, and a "work" created by artificial intelligence cannot be called a work in the sense that it acquires the status of the result of intellectual activity and generally qualifies as an object of copyright, then artificial intelligence "does not invent the original objective form itself, but only imitates what was created by other authors" ^[4], repeating, using and combining variations from already created works.

In this regard, in our opinion, the most correct way to resolve the discussion will be the recognition of advertising works created by artificial intelligence as copyright objects, since in such a situation it is possible to draw an analogy with the processing of things (Article 220 of the Civil Code of the Russian Federation) and derivative works (paragraph 1, paragraph 2, Article 1259 of the Civil Code of the Russian Federation). At the same time, the exclusive right to such objects should belong to the titular rightholder of the artificial intelligence program by analogy with the acquisition of ownership rights to the fruits from the use of the thing ^[5]. However, there are certain difficulties with granting the author's personal non-property rights due to the fact that, as mentioned above, artificial intelligence is not endowed with legal personality, and the copyright holder of the program that created the advertising work is not the author of the work itself by nature.

In this regard, when using artificial intelligence technologies, such personal non-property rights as the right of authorship and the right of the author to the name should not arise a priori ^[5], however, we see it expedient to grant the copyright holder of a program working on artificial intelligence technology the following non-property rights of the author: inviolability (Article 1266 of the Civil Code of the Russian Federation), to make public (Article 1268 of the Civil Code of the Russian Federation) and revocation (Article 1269 of the Civil Code of the Russian Federation) of the work, the right of access (by analogy with works of fine art and architecture in accordance with Article 1292 of the Civil Code of the Russian Federation).

In addition, in situations where advertising is created without the use of artificial intelligence, there is another problem associated with co-authorship of advertising works. According to T.E. Rakhmatullin, when creating advertising material, the individual creativity of an advertising producer is controversial, since advertising material is often created according to the criteria set by the customer ^[6]. Also, with the joint participation of the customer and the advertising producer, it is possible to make adjustments to the already created advertising material, which allows it to be considered as a joint result of the intellectual activity of the contractor and the customer.

According to I. Ponkin and A. Redkina, a similar problem arises when the author of an artificial intelligence program or another third party makes adjustments to the result created by machine labor, and it is not entirely clear whether he can own the right to the finished work or only to the adjustments made by him ^[7]. Such a situation can be resolved by the analogy with derivative works described by us (Clause 1, clause 2, Article 1259 of the Civil Code of the Russian Federation). 

Thus, in order to protect the interests of the advertiser and the advertising producer, it is necessary to settle the issue of authorship of the work being created and its future fate within the framework of a specific contract, and in the case when advertising is created using artificial intelligence technologies, proceed from the approach proposed above, excluding the authorship right and the author's right to the name from the spectrum of personal non-property rights of the author to the copyright holder of the program that generated advertising, and provide the program owner with a limited list of personal non-property rights.

In addition, the result itself, created by the creative work of the advertising producer (author), even with the participation of the customer, for its protection capacity must meet the requirement of originality, that is, independence, uniqueness and uniqueness, independence in the presentation (expression) of thoughts (ideas) by the author ^[8].

Secondly, in order to acquire legal protection and to be an object of copyright, advertising must meet the criterion of "objective form", which implies the objectification of advertising in the outside world – the law does not provide protection to ideas (thoughts), concepts, since they are only in the mind of a particular citizen and cannot be violated by others persons up to the moment of their isolation in the real world, that is, expressions in some form that contributes to the perception of other people ^[9].

At the same time, it is necessary to separate the concepts of "objective form" and "material medium" and understand that Internet advertising does not always appear on any material medium, but is usually published on certain Internet resources - websites (programs or sets of computer programs and other information contained in the information system, access to which is provided via the Internet information and telecommunications network by domain names and (or) by network addresses that allow identifying sites on the Internet [Federal Law No. 149-FZ of 27.07.2006 "On Information, Information Technologies and Information Protection" // Collection of Legislation of the Russian Federation, 2006, No. 31 (1 ch.), V. 3448]), and thanks to them, it acquires the ability to be perceived by users. Thus, the "objective form" implies such a form of Internet advertising as an object of copyright, which can be perceived by consumers through the senses (through sight or hearing), that is, in other words, it must be published on the Internet. An unpublished work cannot be considered an advertisement due to the fact that it will not perform its main function – attracting attention to the advertised goods, works or services and promoting them on the market.

According to the definition of advertising given in the Law on Advertising, advertising information can be distributed "in any form". Accordingly, Internet advertising, as mentioned earlier, can be presented and distributed in the form of texts, pictures, including animated, comics, photographs, videos (audiovisual works), audio recordings, mini-games, etc. At the same time, despite the absence in the list of Articles 1225 and 1259 of the Civil Code of the Russian Federation in in the form of a separate copyright object, regardless of the fact of publication and regardless of its special purpose (drawing attention to the object of advertising, forming or maintaining interest in it and its promotion on the market), Internet advertising and its author (author's team) should be provided with legal protection provided that it meets the criteria of the results of intellectual activity.

Thus, subject to compliance with the criteria of protectability, Internet advertising should be considered as a result of intellectual activity and can be defined as a work published on the Internet, created by the creative work of the author(s) and/or through the use of artificial intelligence technology, existing in the form of text, image, audiovisual work or other form capable of perception by other persons through the use of technical means connected to the Internet, addressed to an indefinite circle of persons and aimed at attracting attention to the object of advertising, forming or maintaining interest in it and its promotion on the market.