Implementation of the Principle of Dualism in Intellectual Property Law on the Example of the Copyright Contract

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 principles of law are its foundation, the foundation. Reflected primarily in the norms of law, the principles permeate the entire legal life of society. They characterize not only the essence, but also the content of the law, reflect not only its internal structure, statics, but also the whole process of its application, dynamics. The Principles serve as the main guideline for all law-making, law enforcement and law enforcement activities of state bodies. Speaking about the principles of law, it should be noted their law-forming specificity: "the principles of civil law are understood as the basic principles of civil legislation that determine the essence and legal nature of legal norms, their connection and interdependence in the regulation of public relations that constitute the subject of civil law" ^{[1; p.29]}. The mandatory consolidation of the principles of law in legal norms, as a distinctive feature of the principles of law from other kinds of principles (scientific, philosophical), is indicated by N.A. Chechina ^[2]. At the same time, the norms do not define the content of the principles, but fix their essence, therefore, the content of the principle cannot be extracted from the norm, while the content of the norm can be extracted from the principle ^[2].

The general principles of civil law are enshrined in Article 1 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) and are listed as: "recognition of equality of participants in relations regulated by civil law; inviolability of property, freedom of contract, inadmissibility of arbitrary interference of anyone in private affairs, unhindered exercise of civil rights, ensuring the restoration of violated rights and their judicial protection, observance of the interests of society, the rights and legitimate interests of other persons, free movement of goods, services and financial resources throughout the territory of the Russian Federation" ^[3].

At the same time, the consolidation of the principles of institutions and sub-branches of law is not always reflected in their norms. So, for example, O.P. Popova identifies the following principles peculiar to inheritance law as an independent sub-branch of law: the principle of equality of heirs by law (Article 1141 of the Civil Code of the Russian Federation), the principle of preserving the unity of inheritance (Article 1110 of the Civil Code of the Russian Federation), the principle of ensuring the right of inheritance to the heir (Part 4 of Article 35 of the Constitution of the Russian Federation) ^{[4; p.7–9]}.

S.A. Sudarikov highlighted the following principles of intellectual property law as an independent sub-branch of law: the principles of dualism of intellectual property, the principle of exhaustion of the right to distribute intellectual property objects, the principle of limitation of intellectual property rights ^[5].

Sudarikov S.A. writes about the existence of two types of principles of law: formulated and enshrined in legislation (dejure) and not established by it (de facto) ^[5]. As is obvious, the principle of dualism belongs to the second type, and its name is taken from philosophy, which is not surprising. It is typical for jurisprudence to use philosophical concepts as a science of universal laws of development. Dualism in philosophy is defined as follows: "... (from Lat. Dualis – dual), philos. a teaching proceeding from the recognition of the two principles of spirit and matter, ideal and material, as equal and irreducible to each other" ^[6]. The principle of dualism in intellectual property law is the duality of ownership of an intangible object of intellectual property and the object in which it is embodied: "the rightholder of an intangible object of intellectual property is its owner, but may not be the owner of the goods in which this object is embodied; the owner of the goods is its owner, but the intellectual property embodied in the goods is not belongs to. In other words, the owner of any product that embodies intellectual property is not its full owner" ^[5]. The point of view about the dual nature of intellectual property law is based on the fact that "that the ownership of the goods is not complete. Therefore, the owner of the goods should use it only in such a way as not to violate the intellectual property right, which does not belong to him" ^[7]. In substantiating this, it is important to note that both values and claims in the case we are considering are also dual, and the product being created is the embodiment of creative activity, objectified realized in the material world, has essential characteristics, represents material value.

One of the reasons for the polemic of the question of the principle of dualism of Russian intellectual law or its monistic nature is also the fact that in modern times within the Romano–Germanic family there are countries with a monistic copyright system (Germany) and a dualistic copyright system (France).  In general, the discussion and legal controversy regarding the issue of the legal nature of the results of intellectual activity is associated with different points of view on the assessment of the nature of the result of intellectual activity, its material or ideal nature. Legal protection of intellectual property rights arose more than 200 years ago, from the established system of privileges of the XV century, as the first method of legal protection for the results of creative activity, transformed by the era of bourgeois revolutions into the right of ownership of works.

Most scientists, including foreign civilists (p. David, K. Joffre–Spinosi) tend to believe that the Russian legal system originates from the Romano–Germanic legal family, the source of law in which is a normative act, legal doctrine is used, as well as the division of the structure into branches and institutions. A different point of view is based on the identity of the development of the Russian legal system, defending the theory of the Slavic legal family (V.N. Sinyukov), which is characterized by a special status of the individual (the intersection of the interests of the individual and the state). L. P. Rasskazov notes that "national (or rather multinational) foundations, a special civilizational path of development that make it unique, original. This does not mean that the Russian legal system is in some kind of isolated circle, not connected with Romano–Germanic, Anglo-Saxon and other legal families. Moreover, due to globalization processes, the Russian legal system is converging with other legal families"^[8]. A.V. Filonov argues that "Modern Russia has its own legal system, which formally falls under the main features characteristic of the Romano–Germanic legal family" ^{[9; p.101]}.

 "The creation of the result of intellectual activity generates two different, albeit interrelated legal relationships, namely: intellectual non-property legal relationship, mediating the relationship of the inherent belonging of the corresponding intangible object to the author, and intellectual property legal relationship, mediating the relationship of the use of this object" ^[10]. A.K. Useikin defines the concept of property in subjective terms as "the powers of a particular person, determining the dominance of the latter over the thing" and indicates the absence of the concept of property in Roman law and the emergence of this concept in the XVI century. ^{[11; p.86]}. Arguing about the triad "possession–use–disposal" applicable to property, he notes that ownership is a special kind of power that can be transferred to others, is closely related to other powers, but not by itself, not independently. Use consists in extracting useful properties from a thing, realized both in action and in inaction. The order is presented to them as an opportunity to influence both the thing itself and its legal affiliation. This applies to the results of intellectual activity to a limited extent and cannot be considered identical to these powers, since any actions with an objectified result of creative activity are initially limited by copyright and exclusive derived from it. In our opinion, despite the fact that the concept characteristic of property rights in terms of "possession–use–disposal" cannot be attributed to intellectual property, intellectual property cannot be considered non-compliance. A.M. Orekhov and M.V. Skachko, exploring property in various aspects, one of the principles of the propetological approach is distinguished the principle of development, "according to which property should be considered as a constantly developing, dynamic and evolving social institution" ^{[12; p. 167]}.

The essence of the dualistic theory is that copyright is two independent rights acting independently, whereas the monistic one combines the personal–legal and property interests of the author ^[13]. However, there is a different opinion among civilists about the division of intellectual rights. Thus, A.P. Sergeev believed that all subjective copyrights (including personal non-property rights) by their very nature are exclusive rights ^[14]. Such an approach does not cover the specifics of all copyrights, since in this case it is impossible to judge what direct property benefit can be derived from the right of access, due to its specificity closely related to the personality of the author, not subject to inheritance (Article 1112 of the Civil Code of the Russian Federation), or the right to revocation (Article 1269 of the Civil Code of the Russian Federation). In addition, the question of who is granted legal protection is also relevant — the results of intellectual activity and means of individualization themselves or the rights to these results and means. Clause 1 of Article 1225 of the Civil Code of the Russian Federation contains a list of protected results of intellectual activity and means of individualization, and Part 4 of the Civil Code of the Russian Federation introduced the concept of "intellectual rights" into Russian legislation for the first time (Article 1226). Therefore, it is correct, from our point of view, to talk about the protection of the results of activities and means of individualization and the protection of violated rights associated with these results.

In fact, Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works indicates the independence of the author's property rights, even after their assignment from the authorship rights: "Regardless of the property rights of the author and even after the assignment of these rights, he has the right to demand recognition of his authorship of the work and to resist any distortion, distortion or other modification of this work, as well as any other encroachment on the work that could damage the honor or reputation of the author"^[15].

Federal Law No. 230-FZ of 12/18/2006 amended paragraph 1 of paragraph 2 of Article 2 of the Civil Code of the Russian Federation regarding the subject of regulation of civil legislation: if it was previously determined that "civil legislation.. regulates.. property and related personal non-property relations based on equality, autonomy of will and property independence of participants", then the current version states the regulation of "property and personal non-property relations based on equality, autonomy of will and property independence of participants" ^[16]. The norm we are considering also specifies the named subjects of civil legal regulation: "the legal status of participants in civil turnover, the grounds for the emergence and procedure for the exercise of property rights and other property rights, rights to the results of intellectual activity and equated means of individualization (intellectual rights)." Does this mean that the rights to the results of intellectual activity and the means of individualization equated to them are a special subject of regulation, different from property and non-property rights? In fact, this is an indication of the special nature of these rights, which is revealed within the legal institutions of the intellectual property law branch. Considering this rule of law, we note the following: from our point of view, the criteria for dividing law into branches are laid down in the naming of regulatory subjects, and the introduction of semantically generalizing meanings as "property and personal non-property relations based on equality, autonomy of will and property independence of participants" is the allocation of zones of legal regulation. Article 128 of the Civil Code of the Russian Federation separately identifies intangible benefits among the objects of civil rights, and Article 150 of the Civil Code of the Russian Federation includes in their list "... authorship, other intangible benefits belonging to a citizen from birth or by virtue of law, are inalienable and non-transferable in any other way."

Is the creation and transfer of a work of science, literature or art by the author to the customer under the contract of the author's order alienation of his rights and the ability to use the work by the customer at his discretion? To answer this question, it is necessary to indicate in advance that intellectual property rights as such are divided into exclusive rights (property), personal non-property rights and other rights (for example, the right to follow). The "Methodological recommendations on the attribution of archival documents to objects of copyright and related rights, access and use of such documents" contains a list of personal non-property rights:

1)      The right of authorship (the right to be recognized as the author of a work)

(Article 1265 of the Civil Code of the Russian Federation).

2)      The author's right to a name (the right to use or authorize the use of the work under his own name, under a fictitious name (pseudonym) or without specifying a name, that is, anonymously) (Article 1265 of the Civil Code of the Russian Federation).

3)      The right to inviolability of the work (the right to make changes, abbreviations and additions to the work, to supply the work with illustrations, a preface, an afterword, comments or any explanations) (Article 1266 of the Civil Code of the Russian Federation).

4)      The right to make the work public (the right to perform an action or consent to perform an action that makes the work available to the public for the first time by publishing it, publicly displaying it, publicly performing it, broadcasting it or by cable or in any other way) (Article 1268 of the Civil Code of the Russian Federation).

5)      The right to recall (the work) (the author's right to refuse from the previously made decision on its publication before the actual publication of the work) (Article 1269 of the Civil Code of the Russian Federation) ^[17].

All the listed rights are inalienable and cannot be transferred. Some of them are protected indefinitely, for example, the right of authorship. The exclusive right is also indicated here: "The exclusive right, which is proprietary, also applies to the objects of copyright within the legally established time limits. The copyright holder of the exclusive right to a work may use this work in any legal way, dispose of the exclusive right, that is, allow another person to use the work, determine the conditions of such use, including receiving remuneration for its use, as well as completely alienate the exclusive right to the work belonging to him ... ^[18].

The essence of the contract of the author's order is the creation and subsequent transfer by the author to the customer on a tangible medium or in another form of the work stipulated by the contract. The autonomy of the author's will to transfer the exclusive right to them is directly expressed in the dispositivity of the norm of paragraph 2 of Article 1288 of the Civil Code of the Russian Federation, according to which "the contract of the author's order may provide for alienation to the customer of the exclusive right to the work to be created by the author, or granting the customer the right to use this work within the limits established by the contract"^[19]. When concluding an author's order agreement with the condition of granting the customer the right to use the work within the limits established by the agreement, the provisions provided for by the norms of Articles 1286 and 1287 of the Civil Code of the Russian Federation regulating legal relations when concluding a license agreement granting the right to use the work are applied to it. At the same time, the condition of ownership of the exclusive right is not essential: the contract will be valid if the parties have not stipulated this point. According to paragraph 3 of Article 1228 of the Civil Code of the Russian Federation, "the exclusive right to the result of intellectual activity created by creative work initially arises from its author. This right may be transferred by the author to another person under a contract, and may also pass to other persons on other grounds established by law"^[20]. Thus, in the absence of a condition in the contract for the transfer of the exclusive right, it will remain with the author, but in the absence of a concluded contract, the fate of the exclusive right often depends on all the conditions of the parties' actions to fulfill the obligations that have arisen between them. The author retains the copyright to the work that becomes the property of the customer. This circumstance, as well as the execution of the contract directly by the author or co-authors, without the involvement of other persons, the creative nature of the subject of the contract of the author's order distinguish the contract of the author's order from the contract and the contract for the provision of services, the legal relations on which are regulated by Chapters 37 and 39 of the Civil Code of the Russian Federation, respectively. It should also be added that the contract of the author's order must have certain deadlines (Article 1289 of the Civil Code of the Russian Federation), this is an essential condition of the contract, since non-compliance with the deadlines entails legal consequences for the parties to the contract. In general, it seems indisputable that contractual relations must be formalized when fulfilling an author's order agreement or including conditions in it regarding the disposal of an exclusive right, which is conditioned by taking into account the interests of both parties. At the same time, the legal assessment by the court of legal relations arising from subjects is not always carried out on the basis of an agreement concluded between them, both in Russia and abroad.

In the United States of America (USA) there is no legislative definition of the terms "service work", "contract of author's order", "employee" and "independent performer": the American legal doctrine of service works (work made for hire doctrine), first reflected in the Copyright Act of 1909 (The Copyright Act, 1909), does not disclose the concept of an official work, but defines the employer as the author of the work a priori in the case of the creation of a work by order: this is a kind of "presumption that the mutual intention of the parties is that the copyright to the work should belong to the one on whose initiative and at whose expense it was created" ^[21] A.E. Ponomarchenko is cited as an example of the case of sculptor James Earl Reed, in which to determine the role of the creator of the work as an employee or independent performer and his authorship and recognition of exclusive rights to the work, the algorithm of the US Supreme Court is given, according to the attribution of the work to the official, consisting of:

1. The court must determine the nature of the employment relationship between the employer and the employee, including: the right of the hiring party to control the way and means by which the creative result is achieved; the presence of a certain skill; the duration of the relationship between the parties; the ability of the hiring party to assign additional projects to the hired party; the degree of discretion of the hired party regarding the time and nature of work; the method of payment; the role of the employer in hiring and paying assistants; attribution of the employer to the subject of entrepreneurial activity; the procedure for granting remuneration to employees; the tax regime of the employer.

2. If there is reason to believe that there were labor relations between the parties (official work), and not civil law relations (commissioned work), the court must determine whether the work belongs to any of certain categories (including contribution to collective work, contribution to the development of a film or other audiovisual work, translation, additional work, collection, educational text, test or test response material, compilation, atlas) and whether there is a written agreement on such work. It is these two criteria, according to the US Copyright Act of 1976, that make it possible to judge the attribution of a work to an official one. In all other cases, the copyright to the works is recognized by an independent employee ^[21]. Thus, the subject of proof in the case is to determine the nature of the relationship between the customer and the contractor. Such schematicity, perhaps, meets the principles of legality and validity, but in general complicates the process of proof, does not allow taking into account all the nuances of the author's work. In fact, this complicates all stages of judicial evidence, from determining the range of circumstances to be proved, to evaluating and examining evidence, including their identification and collection. Attributing a work to a certain category as proof of the performance of an official work, in our opinion, is a formal procedure. For example, how to evaluate literary translation, which is actually a kind of literary creativity, involving the recreation of the artistic text of one language by means of another.

Such a gap in the law forces the courts to use algorithms, tests, involve experts, etc., when solving the issue when determining the categories of works. Shani Shiha notes in general the general doctrinal ambiguity and confusion in the US copyright law, writes about the uncertainty of some criteria of exclusive right and the implicit approach of courts related to it in resolving disputes; about the ambiguity in determining the scope and nature of exclusive copyright, assessing the plaintiff's damage in violation of his exclusive right, based on on the fact that the rule of law requires a commitment to clarity: the rules must be clear enough to comply with them ^[22].He does not deny the author's rights, but Locke's statement is quoted, according to which a person "deserves to own something that he or she has created through productive labor".: "but if copyright is aimed at protecting the rights of the author, at protecting his work, the law should offer some vision of the scope and nature of these rights" ^[22].

Elizabeth L. Rosenblatt (Elizabeth L Rosenblatt) notes the generally complex structure of American copyright, the impossibility of determining the roles of performers, customers, their rights, and the related problem of social justice, citing in her research the words of American hip–hop artist Nipsy Hassl that copyright law complicates making a profit because in music corporations in the USA provide for a complex multi-level system of copyright ownership, none of its structures has an unlimited ability to authorize the use of a particular work. It also generally notes the exploitative methods of doing business by some American companies that have deprived artists of African–American origin of copyright ownership and caused damage to rap and hip–hop performers. In her opinion, the goals of the copyright law declared by the Supreme Court of the USA "encouraging the creation of new copyrighted works" and "ensuring a wider distribution of existing works" can be achieved only by promoting social justice among potential authors ^{[23; pp.10-11]}.

Roberta Rosenthal Kwall notes that "the laws on non-property rights in the United States are relatively weak compared to the vast majority of other countries," the legal insecurity of the author's personal non-property rights, including the uncertainty of the scope of non-property rights, emphasizing that the copyright and the right to inviolability protected in other countries do not have legal protection in the USA, while only the authors of works of fine art have the right to attribution (notification of authorship) and integrity ^[24]. In fact, the American copyright system recognizes that "the main purpose of granting copyright is to reserve for the owner the right to earn money" ^[25].

Andrea Wallace notes the essence of non-property rights: "Non-property rights can accompany copyright and complicate it. Non-property rights protect the author's personal attachment to the work and may vary significantly depending on the jurisdiction. Copyright protection is automatic and long-lasting. It occurs when the original expression is fixed in a material form, which leads to a set of exclusive rights that can last more than a century. In addition to copyright, it is important to consider non-property rights. Both are closely related: a precondition for non-property rights is that copyright must first exist in the work. However, non-property rights are non-economic in nature and relate to the author's personal connection with the work. There are a significant number of different opinions in the world about how non-property rights are recognized and how they are defined. Non-property rights also have their own term of protection, which may differ from the term of copyright." In fact, Wallace, speaking about copyright, implies the exclusive, proprietary right of the author^[26].

In domestic civil law, M.N. Maleina expressed the point of view that personal non-property rights related to property rights are a necessary prerequisite for the emergence of property rights ^[27]. The derivation of rights, in our opinion, is not evidence of their lack of independence. The law indirectly affects property and non-property benefits through the ordering of the behavior of subjects, one way or another connected with these benefits, considered as certain values. According to V.P. Malakhov, "law is a product of the institutionalization of values," and "to appear and possess are two ways of human reality. If the first is being, then the second is existence"^{[28; p.101],[28; p.73]}. Beingness is connected with the awareness of existence, and existence with the surrounding reality. Dualism is expressed in various kinds of legal claims when legal relations arise in the field of intellectual property law. A claim is essentially an intentional expression of a legal claim. I.I. Mazurov, investigating a legal claim in the modern theory of law, identifies an empirical and theoretical component in its composition. The empirical aspect is its external expression, manifests itself directly in the psychological characteristics of a person, is realized in the needs, interests, needs, conviction of violation of rights, while the metaphysical aspect is associated with the value world of a person ^{[29; p.88]}. In fact, differences in the metaphysical aspect create this duality: if claims regarding the recognition of authorship are related to the recognition of the author's work as an intellectual idea, then claims regarding the recognition of an exclusive right are related to the protection of property rights and relate to claims for the opportunity to benefit. Thus, in fact, the need to be the author of a work, to be recognized by him may be related to the motive of self-affirmation of a person in a creative environment, his moral satisfaction: recognition of talent, positive evaluations of the work form self-affirmation and allow one to evaluate one's own success. An external success indicator is an expression of an external assessment of the effectiveness of the result among colleagues and the environment, an internal one is an assessment by a person of the creative process, accompanying factors, its outcome, and the degree of satisfaction with the result. The combination of life failures and successes contributes to the formation of self-esteem, which performs the regulatory function of behavior and activity, "since it correlates the needs and claims of a person with his capabilities" ^[30]. The material embodiment of the subject of labor is associated with the external indicator of success, since it is the evaluation of the result of labor or the objectified creative idea of the author that allows us to judge whether he has creative inclinations, forms his professional image in the eyes of others. The result of creative work initially actually belongs to its author in connection with the process of origin itself, the will of the author extends to it. The author is free to commit any acts, actions, as well as inaction in relation to the created work, limited by the norms of the current legislation. According to Hegel, "I can alienate my property, since it is mine only insofar as I put my will into it, and I can generally remove my thing from myself as ownerless or transfer it to the will of another, but I can do this only because the thing by its nature is something external" ^{[31; pp. 108-109]}.

It should be noted that in the Russian Federation, the disposal of the exclusive right to an official work is normatively based on the principles of legality and social justice: the legislator provides for the return of the exclusive right to the author of the official work in the absence of its use by the employer, and in the case of use within three years or transfer of the exclusive right to another person, remuneration is provided for the author. The right to remuneration is inextricably linked with the personality of the author, it is inalienable, not inheritable, but is payable to heirs if it was not received by the author – testator (Article 1295 of the Civil Code of the Russian Federation). In relation to the contract of the author's order, it is possible to establish the limits of the use of the exclusive right (clause 4 of Article 1288 of the Civil Code of the Russian Federation), which is directly interrelated with the principle of freedom of contract. It is the dual nature of intellectual property law in this case that allows us to maintain a balance of interests of the parties. The implementation of the principle of dualism in copyright contracts is closely related to the principle of good faith. Thus, the decision of the Ostankino Court of Moscow dated 31.05.2016 in case No. 2-2814/16 denied satisfaction of the claim of the authors of the work "Literary Reading. 2nd grade.  Multicultural education. Textbook" to the defendant LLC "Bustard" on the termination of copyright contracts and license agreements. As follows from the descriptive part of the court decision, the initiative of the plaintiffs to terminate contractual relations is based on an insignificant remuneration under the license agreement on the transfer of the exclusive right, including due to the insignificant sale of goods in connection with the publication of works in an insignificant circulation, which also limits the possibility of using the publication by Russian schools. During the meeting, the court established the defendant's conscientious performance of license agreements: timely and full payment of remuneration to authors, according to the terms of the contract, the actual placement of the work in electronic form for purchase in an online store, the commission of a number of actions for the implementation of textbooks, including participation in fairs and conferences. In addition, the court indicated that there was no indication in the contract of the defendant's actions to prepare the work for inclusion in the list of textbooks recommended by the Ministry of Education and Science, and therefore the sale of products in institutions of secondary general education is not carried out^[32].

At the same time, some lawyers note the insufficiency of the general norms of the Civil Code of the Russian Federation on the form of transactions in relation to the copyright agreement. Thus, V.N. Belousov points out the expediency of an imperative instruction in Article 1288 of the Civil Code of the Russian Federation to conclude an author's order contract in writing and its invalidity when concluded orally. In his opinion, the conclusion of the contract orally may have negative legal consequences for both the customer and the contractor: difficulties in determining the subject of the contract, in confirming the fact of the conclusion of the contract, in fact depriving the customer of the right to finalize if necessary ^[33]. In fact, when faced with a gap in the law, and specifically in our example set out below, with the problem when the contract was not concluded in writing, the law enforcement officer is forced to use the appropriate legal tools. E.V. Vaskovsky noted that there are gaps in the law when there is no norm for any category of cases, there is either an incomprehensible, or contradictory norms^[34]. 

In the Decision of the Intellectual Property Rights Court dated 27.10.2021 No. C01–1557/2021 in case No. A56–93136/2020, with reference to paragraph 7 of the Review of Judicial Practice on Disputes Related to the Recognition of Contracts as not Concluded, approved by letter No. 165 of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 25.02.2014, it is explicitly indicated that the assessment of circumstances and evidence in aggregate and interrelation in favor of preservation, rather than cancellation of obligations in the presence of a dispute about a concluded contract, it is also indicated that the contract should be considered concluded in the absence of essential conditions in it, but there are joint actions to fulfill it ^{[35, 36]}. The essential terms of the contract of the author's order are based on the provisions of Article 1288 of the Civil Code of the Russian Federation: these are the terms of the subject of the contract, the terms and remuneration. The article does not contain any instructions on the mandatory written form of the contract. The decision was made in connection with the refusal to satisfy the photographer's claim for violation of the exclusive copyright to Rostelecom LLC when using photographs created by him, in the absence of any contractual relationship with the defendant. As it was established in the court session, between the photographer and the intermediary company, which later transferred the pictures to the defendant, there was an actual binding relationship to create photographs, which were then used by the defendant, without specifying the photographer's authorship. The correspondence between the photographer and the intermediary company, as well as providing them with access to the link with the posted created photos, without any restrictions, served as evidence of intentions and conscientious fulfillment of obligations. The court noted that "the customer's interest cannot consist only in the fact of creating a work and obtaining a material carrier without granting the property right to the work, since it is in it that the property value of the protected object is expressed"^[36]. In fact, this means that the contractor could assume the occurrence of adverse consequences for himself, did not insist on the written form of the contract, had to understand that the customer was interested in receiving the subject of the contract and disposing of it at his own request. Paying attention to the judicial discretion expressed in the application of the clarification of the Supreme Arbitration Court, it should be indicated that it was given as part of the consideration of the case on the claim of the entrepreneur to the limited liability company for the gratuitous elimination within a reasonable time of the shortcomings of the work performed by the defendant. In paragraph 7, paragraph 1, of the "Review of judicial practice on disputes related to the recognition of contracts as not concluded", it is summarized: "If the work is completed before agreeing on all the essential terms of the contract, but subsequently handed over by the contractor and accepted by the customer, then the rules on the contract are subject to application to the relations of the parties," further indicating that that "the delivery of the result of the work by the person who performed them in the absence of a contract, and its acceptance by the person for whom these works were performed, means the conclusion of an agreement by the parties"^[35]. In fact, the dispositivity of the rule on the transfer of the exclusive right with the wording that the contract "may provide for the alienation of the exclusive right to the work to the customer" gave the court the right to apply the law by analogy, in relation to a contract, while Article 703 of the Civil Code of the Russian Federation determined that "under a contract concluded for the manufacture of a thing, the contractor transfers the rights to it to the customer" ^[19],[37]. Is the example we have considered from law enforcement practice a reason to believe about the unitary interpretation of all the rights and prerogatives possessed by the author, and their full transfer by the author to the customer?  In our opinion, no. The Intellectual Property Rights Court, in the decision on the case concerning the transfer of exclusive rights to project documentation, indicates that the conclusion about the transfer of rights to the customer to use the product is possible on the basis of the indication in the contract that the author does not have any rights to use (except for extremely limited powers) ^[38].

In fact, a similar situation is reflected in case No. A60–57091/2016 on the claim of IP Kabzhan Askar Soltanovich to LLC MALINOVKA, which was refused by the Intellectual Property Rights Court Decision No. C01–622/2017 dated September 06, 2017^[39]. The essence of the claim against LLC "Malinovka" when the plaintiff appealed to the Arbitration Court of the Sverdlovsk region was to recognize the exclusive rights to photographs taken by him under the contract of the author's order, and placed in the menu on the website and cafe of the defendant, to recover compensation for violation of exclusive copyrights in the amount of 940,000 rubles. As is obvious from the descriptive part of the Intellectual Property Court Ruling, the contract was not concluded in writing, it was executed, the contractor received payment for the provision of services. At the same time, the plaintiff reports that the remuneration received in the amount of 20,000 rubles was offered as the cost of photography and photo processing, and not as a license fee. The court, refusing satisfaction, refers to the fact that "the absence in the contract of the author's order of a condition on alienation or granting to the customer the right to use the work to be created by the author does not mean that the customer is deprived of the opportunity to use the corresponding work for the purposes for which he intended to use it, concluding the contract of the author's order for the creation of such works"^[39]. After the transfer of the author's photographs to the customer, his exclusive right to them was transferred without documenting, alienated, based on the circumstances of the case set out in the descriptive part, the disposal of the result under the copyright agreement was not discussed by the parties; at the same time, the author's personal non-property rights were preserved and not disputed in the case.

As L.V. Khovrina notes: "The guiding explanations of the plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation on the exercise of rights to the results of intellectual activity directly affect the result of the application of the legal norm so that they become an integral element of its effect on participants in intellectual property relations"^[40]. In this regard, it becomes obvious that the legislation enshrines the rule on the mandatory written form of all types of contracts concerning both contracts of author's order and contracts of alienation of exclusive rights concluded in its continuation.

In conclusion, it should be pointed out that the principle of dualism of intellectual law is mediated by the nature of intellectual property, an objectified expression of the author's creative activity. The creation of a work in a creative, intellectual process, a creative product, under a contract of author's order presupposes further disposal of the exclusive right, which is not always taken into account when making court decisions, distinguishes this type of contract from a contract of contract or provision of services: the performance of work under a contract does not entail further disposal of the subject of the contract, while the disposal of the right to further profit-making in the implementation of the author's order created under the contract is determined by the contractor. In general, the legislative consolidation of independent principles of intellectual property law would make it possible to determine the tactics of improving legal norms, acting as guiding ideas for the legislator.