On the Implementation of the Principle of Dualism of Intellectual Law in Co-authorship

Akhramkina Kira Anatol'evna ORCID: 0000-0002-1224-5406 Postgraduate Student, Russian State Academy of Intellectual Property 55a Miklukho-Maklaya str., Moscow, 117279, Russia kirra4@yandex.ru Other publications by this author

The relevance of the topic provided is explained by the unresolved number of issues in copyright, among which is the lack of a single institutional consolidation of criteria for evaluating the creative contribution of each participant, including indications of the possibility of involving other persons in the creative process, the scope and nature of their work, evaluation in this case of both the creative contribution of the co–author–intermediary, and his ability to in this case, the inconsistency of court decisions, and, as a consequence, the lack of a clear understanding of the disposal of exclusive rights to the product of intellectual work created in co–authorship. This is explained, among other things, by the variety of forms, types and ways of creating works of science, literature and art. The process of implementing the principle of dualism, according to which "intangible intellectual property objects objectively exist, being embodied in material objects" is directly related to the realization of property and non-property rights of copyright holders, depends on the recognition of copyright and exclusive rights to the work, evaluation of the creative contribution of each participant in the process and his eligibility to be called a co-author of the work ^{[1; p.5]}. In our article we will consider the relationship between the recognition of authorship and exclusive rights to photographs created by joint work.

Copyright is part of the structure of universal human rights, is one of the essential guarantors of intellectual creativity and self-realization, freedom of creative thought, self-affirmation. The legal opposition of copyright and exclusive rights is incorrect, since the exclusive is an element of copyright, but is not equivalent to it: it initially arises from the author, but can be transferred to another person on the grounds established by law (paragraph 3 of Article 1228 of the Civil Code of the Russian Federation, hereinafter referred to as the "Civil Code of the Russian Federation") (Article 1228 of the Civil Code of the Russian Federation. The author of the result of intellectual activity [Electronic resource]// SPS Garant. URL: http://ivo.garant.ru/#/document/10164072/paragraph/161960686/doclist/99/showentries/0/highlight/1228%20%D0%B3%D0%BA:1 (accessed 06.10.2022)). Despite the fact that photography is an independent static work, closely related to the material carrier, since it is the object of the material world that is imprinted on it, as an object of copyright it has a dual legal nature. The fact that a photographer has created a photographic image presumes that he has copyright in the photo, but does not always endow him with the sole exclusive right, and the possession of a photographic image does not imply that its owner has the opportunity to fully dispose of the exclusive right to it. This is due to the special nature of photography as an object of copyright and the principle of dualism that applies to it.

Initially, it is worth noting that there are polar points of view on photography as a type of fine art. The creation of photography with the help of scientific technology, a camera, is simplified compared to the creation of paintings, sculptures, at the same time, its connection with real objects of reality, fixing moments from the point of view of aesthetics of the subject of photographing cannot put it on a par with mechanical, factory production.

The Great Russian Encyclopedia defines photographic art as "a type of fine art; which includes works obtained as a result of capturing an image of reality and manipulating it through the opto–chemical (later opto–digital) process of photography" (Photographic Art. [Electronic resource] The Great Russian Encyclopedia. URL: https://bigenc.ru/fine_art/text/4734545 (accessed 06.10.2022). Photography is "the art of taking photographs, where the main creative process is to find and choose the composition, lighting and the moment (or moments) of the photograph. Such a choice is determined by the skill and skill of the photographer, as well as his personal preferences and taste, which is typical for any kind of art. The special place and importance of photography in artistic culture is connected with the technical, scientific essence of photography. The most important property of photography is its authenticity, the authenticity of the captured events. At the same time, the image, as in painting or drawing, carries an artistic generalization, the disclosure of the inner meaning of the situation shown, the character of the person depicted, and much more. In essence, a photographer is an artist who has certain "colors" – photographic equipment and photographic materials… With the development of photography, a large number of different structures and auxiliary mechanisms for obtaining images were created" (Photography. [Electronic resource] Dictionaries and encyclopedias on the Academician. URL: https://dic.academic.ru/dic.nsf/ruwiki/1227 (accessed 06.10.2022). Here are quotes from masters of the genre about this kind of art. A classic of street and documentary photography, American photographer Harry Vinogrand: "Photography is not about the photographed thing. It talks about what the photographed thing looks like" (Inspirational quotes from masters of photography. [Electronic resource] Cameralabs. URL: https://cameralabs.org/4208-vdokhnovlyayushchie-tsitaty-masterov-fotografii (accessed 06.10.2022)). Lord Patrick Lichfield, cousin of Queen Elizabeth II, professional photographer who collaborated with major publications: "Remember that the person you are photographing is 50% of the portrait, and the other 50% is you. You need the model as much as he or she needs you. If they don't want to help you, it will be a very bleak picture" (Inspirational quotes from masters of photography. [Electronic resource] Cameralabs. URL: https://cameralabs.org/4208-vdokhnovlyayushchie-tsitaty-masterov-fotografii (accessed 06.10.2022)). "Photography may or may not be called a special, special, technical or any other art, it does not change the case" (Lapin A. I. Photography as... Textbook. – M.: Publishing House of Moscow University, 2003. - 296 p.; p.24). "No matter how smart his camera is, it will not solve on its own the problems that arise and will arise whenever a person looks at the world through a viewfinder and decides what to take in the frame, which details are necessary (and they should be highlighted), and which are superfluous (it is desirable to remove them or at least mute them), the combination of which details carries meaning, how to strengthen or weaken this meaning, and so on, and so on. It should be decided every time by the person controlling the camera" (Lapin A. I. Photography as... Textbook. – M.: Publishing House of Moscow University, 2003. – 296 p.; p.17).

All of the above allows us to conclude that photography is a work created by intellectual labor with the help of technical means, using means of photographic expressiveness (light, perspective, sharpness), having a composition (highlighting the main thing, accents), layout (arrangement of individual parts in an integral object), having artistic or documentary significance, depending on the purpose of photography.

Photographic works and works obtained by methods similar to photography by virtue of paragraph 1 of Article 1259 of the Civil Code of the Russian Federation are objects of copyright and are protected by law (Article 1259 of the Civil Code of the Russian Federation. Objects of copyright.[Electronic resource] // SPS Garant. URL:http://ivo.garant.ru/#/document/10164072/paragraph/8676/doclist/99/showentries/0/highlight/1228%20%D0%B3%D0%BA:1 (accessed 06.10.2022)). The Berne Convention defines that photographic works and works obtained by methods similar to photography are referred to the term "literary and artistic works", covering any production in the field of literature, science and art, regardless of the method and form of its expression" (Berne Convention for the Protection of Literary and Artistic Works. [Electronic resource] Federal Institute of Industrial Property. Rospatent website URL: https://fips.ru/documents/international-documents/konventsii/bernskaya-konventsiya-ob-okhrane-literaturnykh-i-khudozhestvennykh-proizvedeniy.php (accessed 06.10.2022)). The triad of powers to own, use and dispose of property is not applicable to literary and artistic works as intangible goods. According to Morgunova E.A., works of copyright "are not material and are not limited in space and can be used simultaneously by an unlimited number of persons", "the rights to the work have a dual character", "the use of works is based on principles other than the principles of using a thing" (Morgunova E.A. Copyright: textbook. manual/E.A. Morgunova; ed. V.P. Mozolin.– M.: Norma, 2009.– 288s.; pp.19-20).

Currently, the rights legally assigned to the author of the work, interrelated, but having a different nature, are defined in paragraph 2 of Article 1255 of the Civil Code of the Russian Federation):

– The exclusive right or the right to use the work (through reproduction, distribution, public display, import, rental, etc.) in any form and in any way that does not contradict the law (clause 1 of Article 1270 of the Civil Code of the Russian Federation).

– The right of authorship, the right of the author to the name, the right to be recognized as the author of the work and the right to use or allow the use of the work under his own or fictitious name. The right of authorship – the recognition of a certain person as the creator of the result of intellectual activity, the right of authorship "determines all other copyrights. The right of authorship is the most important personal non–property right of an individual. This right is protected indefinitely. It is characterized by exclusivity and absolute character, since it is the right of authorship that makes it possible for the creator of a work to consider himself the author of this work… Both of these rights are inalienable and non-transferable, including when transferring or transferring the exclusive right to a work and when granting another person the right to use the work" ("Civil Code of the Russian Federation. Part four. Article-by-article commentary" (S.P.Grishaev) (Prepared for the ConsultantPlus system, 2022) [Electronic resource] // SPS ConsultantPlus (accessed 07.10.2022)).

– The right to inviolability of a work means that changes, abbreviations and additions, including a preface and an afterword, are inadmissible without the consent of the author, his works, illustrations, comments or explanations. The legislation does not contain a direct indication of the inheritance of this right, however, it can be concluded from the meaning of paragraph 1 of Article 1266 of the Civil Code of the Russian Federation that this right is inherited conditionally when the exclusive right is transferred – the permission of the heir to make changes is permissible if the author's intention is not distorted and this does not contradict the will of the author. B.B. Cherepakhin, agreeing with the possibility of transferring these rights by inheritance, wrote: "The author's right to the inviolability of the work created by him after his death passes to the heirs as part of the rights of the copyright transferred to them for the period for which the copyright as a whole passes to them. It is difficult to understand why this does not mean the transfer of the right to inviolability of the work in the order of hereditary succession by law or by will" ^[2].

– The right to publish a work is the right of the author to make the work available or to consent to the implementation of this action (by public publication, performance, i.e. any demonstration).

Also, the disposition of clause 3 of Article 1255 of the Civil Code of the Russian Federation determines the existence of other rights: the right to remuneration for an official work, the right to recall, the right to follow, the right of access to works of fine art.The right of access, due to its specificity, is closely related to the personality of the author, is not subject to inheritance (Article 1112 of the Civil Code of the Russian Federation), whereas the right of succession is inalienable, but inheritable (Article 1293 of the Civil Code of the Russian Federation).

Speaking about the author's right, we should mention the existence of the French term "moral law": it is enshrined in modern legislation (the Code of Intellectual Property, or CPI) and is associated with the personality of the creator of the work (art. L 121-1CPI) ^{[3; p.70]}. Moral rights include the right to the author's name and authorship, the right to inviolability of the work, the right to publish and the right to withdraw the work from circulation. "The possession of these rights should be separated from the material possession of the work. This dualism, which is of fundamental importance for understanding the legal regime of works, is not always properly understood in the art world. For example, the purchase of a statue, a material object, has nothing to do with the purchase of property rights to it"^{[3; p.70]}. In his monograph, actually conducting a comparative analysis of French and Russian legislation, V.V. Lebed writes that the legislation of many European states, unlike the Russian one, proceeds from the principle of the impossibility of alienation of exclusive copyrights, notes the debatable nature of this issue in Russian legal doctrine, citing V. A. Kabatov's polemical arguments about the author's right to transfer for the publication of their work, both B.S. Antimonov and E.A. Fleishits, who saw the inadmissibility of transferring the author's rights to another person due to their exceptional nature ^{[3; p.41]}.

In general, the principle of dualism of intellectual property law is mediated by the continuity of continental law. Proprietary theory of copyright and patent law of France, created by the efforts of philosophers and enlighteners of the XVIII century. (Voltaire, Diderot, Rousseau), which became widespread in pre-revolutionary Russia, is expressed in the fact that "at first, the content of copyright in France consisted only of personal non-property rights, later non-property rights were included in it. Thus, copyright has acquired a dual nature" (Morgunova E.A. Copyright: studies. manual/E.A. Morgunova; ed. V.P. Mozolin.– M.: Norma, 2009.– 288s.; p. 23). N.V. Shcherbak adheres to the same point of view: "the division of intellectual rights into personal non-property and property rights is recognized by the Roman doctrine of copyright and patent law, which was the basis of Russian intellectual property legislation"^[4].

As noted by A.V. Zalesov, "without the author, the copyright to the work will not arise and will not be transferred to any next copyright holder," at the same time, "the identity of the author follows the work"^{[5; p. 27]}.

In Portugal, which joined the Berne Convention on March 29, 1911, photographs that do not have originality are not protected, they do not have the same protectability as technical documentation ^[6]. By some domestic authors, as criteria for the protectability of works, their originality, that is, novelty, creative independence, uniqueness (Gavrilov E.P. Originality as a criterion for the protection of objects by copyright. [Electronic resource] <url>. News from Russia and the world.  Archival documents: Comments on the laws URL: https://www.lawmix.ru/comm/1280 (accessed 06.10.2022). When analyzing the possibility of free use of photographs on the Internet in modern civil law, a number of authors put forward assumptions about the assumption of free use of photographs with the absence of "elements of creativity", that is, photographs that are not of artistic and aesthetic purpose, but rather perform an informational, technical or descriptive function. The lack of creative orientation, artistic means of expression, expressed in the absence of its own kind of the object of photography means for such images, in their opinion, exclusion from copyright objects, and as a consequence, the absence of exclusive rights to it ^{[7; pp.92-93]}.             V. A. Maksimov, analyzing the conditions for the protection of works in copyright, rightly notes the duality of the creative nature of such a work and the objective form of its expression. He also notes the subordination of the concepts of "creative" and "new", exploring the meaning of originality: the creation of a new product is not always creative, but the creation of a creative one is always new and original ^[8].

At the same time, paragraph 80 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10 dated 23.04.2019 states that the presumption of the creation of the result of intellectual activity (hereinafter – RID) by creative work, as well as that "the absence of novelty, uniqueness and (or) originality of the result of intellectual activity cannot indicate that such a result was created It is not a creative work and, therefore, is not an object of copyright" (Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10 of 23.04.2019. [Electronic resource] // SPS ConsultantPlus URL: https://www.consultant.ru/document/cons_doc_LAW_323470/ee07ed989eace60044215bd4b9b812f99a2f6919 / (accessed 06.10.2022)). The same Resolution states that when establishing co-authorship by the court, creative participation and creative contribution should be taken into account, without attributing to such the provision of technical and "other assistance not of a creative nature" to the author (Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10 of 23.04.2019. [Electronic resource] // SPS ConsultantPlus URL: https://www.consultant.ru/document/cons_doc_LAW_323470/ee07ed989eace60044215bd4b9b812f99a2f6919 / (accessed 06.10.2022)).

In some countries, there is no division into copyright and exclusive right or they are identical, so in Nigeria copyright is "defined as the exclusive right that the owner of an intellectual creation has to create copies of his work, the right to use, manufacture and operate" ^[9].

Drawing an analogy with the French legal doctrine, it should be noted that the originality of a work is one of the main conditions for the recognition of the legal protection of a work, which is generally characteristic of the states of the continental legal family, while in British law the concept of originality has a great pragmatism, rather refers more to the way and manner of fixing the work than to its uniqueness and artistic value^[10],[11]. Evseeva O.V., analyzing photography as an object of law in French legislation from the moment of photographing to the present day, discusses the equivalence of the concepts of "personality imprint" of the author and originality^[12]. She highlighted some positions of the French courts on the attribution of photographs to works of art, according to one of them, photographs as works of art are subject to legal protection and belong to such by virtue of their origin, without an assessment of artistic value, since their appearance became possible precisely thanks to the skill of the photographer, his manner of photographing, dexterity, and without these skills of their appearance it could not take place in a material form^[12].

Tehila Rozencwaig-Feldman (Tehila Rozencwaig-Feldman), analyzing the institute of co-authorship, identifies in the American legal system the Goldstein approach, recognizing co-authorship only with the creative self-expression of each participant, fixed on a tangible medium, and the Nimmer approach, which seems to the courts less priority, allowing to judge the presence of co-authorship with any minimal contribution to the joint work, complementing the work, protected by copyright. It notes the low effectiveness of the following criteria for attributing a work to a co-authorship: the first (the so-called "all or nothing") establishes the obligation of a similar contribution of each of the co-authors to the work, thereby preventing the recognition of additional types of contributions as useful for this work, and the second, based on the proportionality of the contribution to assess remuneration, it cannot be objective, because there is no concept of what is considered a sufficient contribution ^[13]. A similar argument is made by Mark Bartholomew, a professor of law at the University of Buffalo Law School, who noted the fact that American courts have chosen a tendency to minimize the requirements for creativity and attach less importance to expert opinions on creativity due to the usurpation of the role of fact-checker: "the courts believe that artistic creativity is incapable of measurement"^[14]. Rosenzweig-Feldman also critically assesses the verification of mutual intention in co–authorship - a mandatory procedure of the American legal system, noting both the rigor and inconsistency of the judicial system in following it, and the presence of false intentions that may be expressed by an unscrupulous party. The author suggests the allocation of a threefold structure in the authorship of such works: the main co-author, who has an equal share of rights; the secondary co-author, with a relative share of rights, or having limited rights, for example, a smaller percentage of remuneration, and the minimum co-author, who has a non-property right, for example, providing technical services when creating a work, having the right to indicate his names in the list of authors^[13]. The Rosenzweig-Feldman theory cannot be considered sound applicable to the Russian legal system due to the lack of a creative component in the role of a minimal co-author providing technical services. In addition, the dilemma in the priority of the rights of the main and secondary co-authors is unclear. However, in a number of countries, co-authors can indeed be recognized as persons who have invested finances in a common project, provide consulting services and perform other non-creative work. Article 38.1 of the Vietnam Intellectual Property Law provides for the division of rights to a work created by co-authors, both moral and economic. The creation of a work by co-authors implies the investment of time, finances, material or technical capabilities in the overall work (How to Register Copyright in Vietnam? By Kenfox IP & Law Office. // [Electronic resource] URL: https://www.hg.org/legal-articles/how-to-register-copyright-in-vietnam-62700 (accessed 06.10.2022)). Perhaps the point of view of Rosenzweig-Feldman correlates in general with modern views on copyright in the United States of America, where "the promotion of diversity in authorship, that is, the promotion of the creation of works by as many authors as possible, undoubtedly contributes to the creation of more works, not to mention more diverse works", "the progress of copyright is in encouragement of authorship"^[15].

For the emergence of co-authorship according to the legal doctrine of the Russian Federation, the creative participation of co-authors, intellectual work is necessary, which implies its direct connection with their personality.  Article 1258 of the Civil Code of the Russian Federation defines co-authorship indirectly as joint ownership by two or more citizens of copyright for one work. In practice, there are many controversial situations when the author has to prove that the work he created is the result of his intellectual activity, has legal protection, especially when creating a work in co–authorship.

As follows from the descriptive and motivational part of the Appeal Ruling No. 33-7878/20 of 25.06.2020 of the Krasnodar Regional Court in case No. 22-7878/20 (2-3314/2019), there was an oral agreement between the plaintiff, photographer Meshchanov A.G. and the defendant Roman Empire LLC on the joint creation of photographic works by actors and visitors of the Roman Empire Show Park", at the same time, the court of first instance established the independent transfer of photographs by the plaintiff to the defendant, and photographic works having a staged nature were evaluated by the judicial board as the result of joint activities of the plaintiff and the defendant (Appeal Ruling No. 33-7878/20 of 25.06.2020 of the Krasnodar Regional Court (Krasnodar Territory). [Electronic resource] Civil legislation. Laws. Comments. Judicial practice. URL: https://lawnotes.ru/sudpraktika/sou/apellyatsionnoe-opredelenie-_-33-7878_20-ot-25.06.2020-krasnodarskogo-kraevogo-suda-(krasnodarskiy-kray ) (date of application – 07.10.2022)). In the statement of claim, the plaintiff points to the misuse of photographs taken by him, the absence of his consent to their placement by the defendant in social networks and use in advertising companies, demands the termination of the illegal use of photographs and the recovery of compensation for copyright infringement and compensation for moral damage. At the same time, the court established the facts of placing disputed photos both on the photographer's website as personal advertising, indicating their staged nature, and on the defendant's website, indicating the photographer's first and last name. At the same time, the staged nature of the photo can be considered a sufficient legal basis for the court's decision, but there is no information about the establishment of this fact by the court, except for the actual basis of the court's decision – the placement of photographs by the plaintiff on the Internet page indicating the staged nature of the photography. Due to the evaluation of the result of intellectual activity as created in co-authorship, it is indicated that the exclusive right to it can be used at its discretion, on the basis of paragraph 3 of Article 1229 of the Civil Code of the Russian Federation. As a justification for the decision, the proof of the existence of co-authorship at the time of publication of the work, which is an inseparable whole, confirmed by the will of the co-authors, as recommended in paragraph 83 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 23.04.2019 No. 10 "On the application of Part four of the Civil Code of the Russian Federation" (Resolution of the Plenum of the Supreme Court of the Russian Federation dated 23.04.2019 No. 10. [Electronic resource] // SPS ConsultantPlus URL: https://www.consultant.ru/document/cons_doc_LAW_323470/ee07ed989eace60044215bd4b9b812f99a2f6919 / (accessed 06.10.2022)). The Judicial Board for Civil Cases of the Krasnodar Regional Court refused to satisfy the claim. Thus, judicial discretion in this example was expressed in the legal assessment of the event as co-authorship, in the absence of officially fixed cooperation.

In foreign practice, it is possible to make a decision based on legal custom. So, in the article of the judge of the European Court of Human Rights D. Shpilman, the case of the Ashby Donald case is cited, in which the plaintiffs, accredited photographers of the fashion house, are recognized as infringers of the copyright of fashion designers, in the absence of contracts actually concluded with them. The photographers sent photos from fashion shows of the collection of fashion houses to the company, which later published them in the public domain for advertising purposes, to promote the provision of photo and video services. As it is obvious from the article, the judicial conclusions are based on the established legal custom – the practice of the absence of exclusive agreements between photographers and fashion houses, the work of photographers is actually regarded not as co-authorship, but as an official work involving the transfer of exclusive rights to the customer ^[16].

The plaintiff Grigorchenkov A.G. appealed to the court with a claim to Zhdanova N.L. for copyright protection and compensation for moral damage. The plaintiff actually asks to recognize the co-authorship in the creation of photographs of N.L. Zhdanova, without challenging her authorship. The plaintiff refers to the joint production of photographing sights and architectural structures of Smolensk, the independent development of a shooting illumination system, the choice of angle and exposure, further processing of photographs that he shared with the defendant, indicates that participation in the shooting of the defendant was reduced to the protection of photographic equipment, she was also allowed to shoot with a personal camera located next to with the plaintiff's camera, and take photographs on the plaintiff's camera mounted on a tripod. The defendant posted on websites on the Internet photographs taken with her own camera, without specifying the authorship of the plaintiff, which, in his opinion, violated his exclusive right, in this regard, they have made demands: to recognize violations of personal non-property rights and exclusive copyrights, oblige the defendant to eliminate violations by deleting posted photos and bring public apologies, as well as to collect compensation from the defendant for moral damage for violation of personal property rights. (Decision No. 2-159/2019 of February 5, 2019 [Electronic resource] SudAkt: Judicial and regulatory acts of the Russian Federation. URL: https://sudact.ru/regular/doc/UXiadvPYjl1m / (accessed 06.10.2022)). According to the descriptive and motivational part of the decision of the Zadneprovsky District Court of Smolensk dated 05.02.2019 in case No. 2-159/2019, the court established the following facts: photographing by the plaintiff and the defendant with different cameras, the absence of agreements on the joint creation of an object of creativity and the prohibition of posting both processed and unprocessed photos. The authorship of the defendant by the plaintiff is not disputed, it is indicated that the lighting technique is generally known and generally available. The witness questioned at the court session pointed out the identity of the photos of the participants in the process in terms of the plot, lighting and composition and the difference regarding the location of objects on them. "Analyzing a photographic work as an object of copyright, the court proceeds from the fact that only one person can participate in the creation of a photograph, taking into account the process of photographing itself" (Decision No. 2-159/2019 of February 5, 2019 //[Electronic resource] SudAkt: Judicial and Regulatory Acts of the Russian Federation. URL: https://sudact.ru/regular/doc/UXiadvPYjl1m / (accessed 06.10.2022)). Due to the fact that the exclusive right of the plaintiff to the disputed photos was not established, the court issued a decision to dismiss the claim in full due to unreasonableness.

In the light of the court's wording that technically the photographing process can only be carried out by one person, the question arises whether it is possible for the author to recognize an animal photograph if technically it can perform a single press on the camera button. There are no similar examples of judicial practice in the Russian Federation, while in the United States of America there is a case for the protection of the rights of photographer David Slater, on whose camera a selfie was taken by a crested baboon Naruto from Indonesia. The litigation ended with an agreement on the payment of a part of the fee by the photographer for each sale of a photo to an animal rights organization, despite the fact that in 2014 "the US Copyright Office ruled that the creations of animals and plants cannot be protected by copyright" (Martyshkin Work. For the famous photo of a monkey, the photographer will still pay her and her relatives 25%.//[Electronic resource] Medialeaks.URL:https://medialeaks.ru/1209bva-naruto-win/ (accessed 06.10.2022)). This case is cited by Dina Magdy El-Husseini (Dina Magdy El-hussieny selite) as a justification for the need for awareness of the basics of copyright and the need to raise the level of legal culture in everyday life^[17]

In the decision of the Zadneprovsky District Court of Smolensk considered by us above, it is actually indicated about the mandatory conditions for co-authorship: the presence of joint activity in the direct creation of a specific photo by an oral or written agreement on the creation of a specific work, the creative contribution of co-authors to the created work. The difference in the shooting angles and the difference in the photos themselves, regardless of the plaintiff's choice of objects, allowed the court to conclude that there was no co-authorship. It is noteworthy that the court, when making a decision, indicated that there was no prohibition when taking photographs by the defendant with additional illumination created by the plaintiff to create his photographs, which can be regarded as permission to provide technical conditions for creating his own creative product. The decision of the Zadneprovsky District Court, which actually restricts the possibility of participation in the process of creating a photograph of other persons besides the photographer, contradicts the Decision of the Intellectual Property Rights Court of March 21, 2014 No. C01–57/2014 in case No. A24–1669/2013, which canceled the court decisions previously taken in the case and sent the case for recognition of exclusive copyrights for a new consideration, in due to the erroneous conclusions of the courts that the video frames captured by the plaintiff are not the result of creative work on the selection and arrangement of video material and cannot be recognized as an object of copyright" (Resolution of the Intellectual Property Rights Court of March 21, 2014 No. C01–57/2014 in case No. A24–1669/2013 [Electronic resource] SPS Garant. URL: https://www.garant.ru/products/ipo/prime/doc/70519506/#review (accessed 06.10.2022)). From the analysis of the case of the court decision, it follows that initially the claim of IP Mikayelov to the Editorial Office of the Nord-Ost Inform news Agency LLC was connected with a public demonstration on the air without his consent and in the absence of a contract on the alienation of the exclusive right in relation to the video footage of the Tolbachik volcano eruption created by him. The claim was denied by the courts on the basis of the conclusions that the presented videos represent a fixation of a natural phenomenon, reflecting the events taking place around, do not meet the criteria of novelty, uniqueness or originality. The referral of the case to a new hearing by the Intellectual Property Rights Court is motivated, firstly, by the lack of legislative consolidation of the concepts of "result of creative activity" and "work", secondly, by the definition of creativity as intellectual activity, the result of which is the creation of an intellectual product, previously unknown, with signs of novelty and originality, thirdly, by the presumption of creative labor when creating such a product. The court defined the creative activity of the photographer as "actions to create the result of intellectual activity: the choice of exposure, the placement of the object of the photograph in space, the choice of one's own position for photographing, the installation of light and/or adaptation of one's location and the location of the object of photographing to the available lighting, the selection of light filters for the lens, the adjustment of shutter speed, the adjustment of the aperture, adjusting the sharpness of the frame, developing photographic film (for film cameras), developing photographs (for film cameras), processing the resulting image using special computer programs (for digital cameras)." In fact, the process of creating any photo or video is recognized by a court decision as creative activity, namely, placing an object in the frame and choosing the location of the photographer, adjusting the camera exposure and the depth of field of the image, the photographer's work with light and other actions (How to protect copyrights to photos on the Internet? [Electronic resource] IP Brand Patent Office. URL: https://ipbrand.ru/news/avtorskoe-pravo/kak-zashchitit-svoi-avtorskie-prava-na-fotografii / (accessed 06.10.2022)).

The decision of the Vasileostrovsky District Court of St. Petersburg dated 17.02.2017 in case No. 2-2965/2016 recognized a violation of the exclusive rights of the photographer in the absence of any contractual relationship with the customer. At the same time, the joint activity of the photographer and the model is not regarded by the court as creative, carried out in co-authorship, as well as the subsequent processing of photographs by the model using a computer program: the descriptive and motivational part indicates the possession of exclusive rights by the photographer if the photographer and the customer have not concluded an agreement, as well as the possession of copyright by the author (photographer) by virtue of the creation of the work, regardless of artistic significance, further technical treatments, etc. (Decision No. 2-2965/2016 of January 17, 2017 in case No. 2-2965/2016 [Electronic resource] SudAkt: Judicial and Regulatory Acts of the Russian Federation. https://sudact.ru/regular/doc/y3Cx3Pyl8Idq / (accessed 06.10.2022)). In fact, cooperation is directly indicated here, when "the work is carried out by individual authors independently, and then the parts created by them are combined into one product… In this case, an individual author knows only certain requirements for the work he creates, but creates his own part without creative interaction with other persons"^[18].

In the examples of judicial practice considered by us, the recognition of the subject of a judicial dispute as a product of co-authorship between the plaintiff and the defendant or between the plaintiff and a third party, as well as the refutation of this fact entailed the recognition of exclusive rights or to establish their absence. The conducted research allows us to draw the following conclusions: the author has copyright by virtue of the creation of the work, regardless of artistic significance and treatments. The sole disposal of the exclusive right to the RID created as a result of co-authorship, that is, the right to use it at its discretion in any way that does not contradict the law, on a reimbursable or gratuitous basis, is possible only with the consent of other co-authors and respect for their rights, an indication of another author is necessary due to the joint creation of the work and the guarantee of protection of his rights. Co-authorship can be recognized as such only if there is an oral or written agreement on the will of the parties to jointly participate in the creation of a creative product, their correspondence, transfer and exchange, both intermediate and final results of creative activity, etc., can testify, that is, in fact, an objective expression of intentions in creating a common result, co-authorship should have a mutual creative character, that is, all co-authors must introduce elements of creativity into the result of joint activity being created, while on the part of the participant in the creative process, it is not enough to introduce originality with the help of technical means and devices. The absence of a creative contribution to the creation of a work does not create co-authorship and, as a consequence, joint disposal of the exclusive right, but allows us to judge only about cooperation. The duality or dualism of intellectual property rights is explained by the emergence of the work itself, that is, copyright to it, and then – the exclusive right to it, is associated with its creation as a result of intellectual, creative activity. At the same time, it is impossible for co-authors to determine a greater or lesser possession of authorship, as well as an exclusive right, regardless of the contribution to the creation of the work. The understanding of the unity of the exclusive right to the joint result of the creative activity of co-authors is also evidenced by the previously valid explanation of the identity of the violation by one action of the rights of several persons who jointly own the exclusive right to one result of intellectual activity to one case of misuse of the result of intellectual activity, set out in paragraph 5 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 18.07.2014 No. 51 (canceled due to By the adoption of the Resolution of the Supreme Court of the Russian Federation No. 10 dated 23.04.2019) (Resolution of the Plenum of the Supreme Court of the Russian Federation No. 51 dated 18.07.2014 "On Some issues arising during the Consideration of disputes involving organizations engaged in collective management of copyright and related rights" // [Electronic resource] SPS ConsultantPlus URL: http://www.consultant.ru/document/cons_doc_LAW_166685 / (accessed 06.10.2022). In addition, the possibility of acquiring a share in an exclusive right under Russian law remains a controversial issue, not regulated by the legislator: paragraph 3 of Article 1229 of the Civil Code of the Russian Federation does not contain restrictions on the allocation of a share from an exclusive right owned by several persons jointly, and the possibility of separate disposal of such a share, as well as instructions on its allocation.

The unity of the exclusive right and its close connection with authorship is also noted by Vitko V.S. when studying the legal regime of an official work created in co-authorship, in the case when only one of the authors is connected by labor relations with the employer, pointing to the special legal regime of such a work and the inadmissibility of transferring the exclusive right to the works to the employer in this case^[19].

The relationship between authorship and exclusive right is obvious: for example, Zyrichev A.N., Zvorykin I.E. and Dyachenko O.G., arguing about the consistent emergence of these rights and legal protection for the work as a whole, say that an intellectual creative product (ITP) becomes a component of a two-pronged whole of intellectual property, in other words, "an object of intellectual property property", if and only if the copyright holder has an exclusive right to it, that is, when the ITP receives legal protection" ^[20].