Substantiation of the principle of dualism in Russian Copyright

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 importance of the principles as the basic principles of civil legislation is indicated in Article 1 of the Civil Code of the Russian Federation (hereinafter – the Civil Code of the Russian Federation), but the Civil Code of the Russian Federation does not contain their definition and an exhaustive list. The principles of intellectual property law as such are not reflected systematically, but are dispersed according to the Civil Code of the Russian Federation and other normative legal acts.

In the doctrine of intellectual property law, the principle of dualism is highlighted by S.A. Sudarikov as the duality of ownership: "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 does not belong to him. In other words, the owner of any product that embodies intellectual property is not its full owner"^[1].

The allocation of the principle of dualism in the sub-branch of intellectual property as a common sphere of creation of the human mind means its implementation in all its institutions, including copyright, which regulates legal relations related to the creation and use of works of science, literature or art, that is, the objective results of creative activity of people in these areas. The purpose of this study is to concretize the principle of dualism in the Institute of copyright, in the light of the incessant development and emergence of new objects of copyright, which remains open to the legislator, as Zh.Ts. Zayatuyev notes, copyright "has increasingly begun to appear in our lives, due to the development of technologies that allow us to quickly copy and distribute works that are objects of copyright rights"^[2]. One of the objectives of this study is to argue for the choice of a way to concretize this principle from the point of view of the scientific method, its ontological and philosophical justification.

"Principle" is defined in philosophy as "the central concept, the foundation of the system, representing the generalization and extension of a position to all phenomena of the field from which this principle is abstracted"^{[3; p.239]}. Generalization of propositions is a statement of a thought or idea, therefore, a principle can be defined through an idea, but is not limited to this definition, since it is knowledge. Knowledge about a subject is a philosophical category, and represents "what is expressed by a reasoned, generally valid, intersubjective sentence or a system of such sentences"^{[4; p.63]}. It can be argued that knowledge has the form of a technological idea, since it is procedural, reproducible, and prescription. The compounding of knowledge lies in the possibility of determining the methods of action with an object. V.P. Gribanov, exploring the concept of "principle of law", initially defined the following directions: principle – guiding idea, principle – norm containing the most general provisions, principle – reflection of the laws of social development^[5]. Based on this, the principle as a guiding idea can denote a governing system of knowledge about the subject of reality.

The principle of dualism, according to its author S.A. Sudarikov, lies in the idea that "intangible intellectual property objects objectively exist only embodied in material objects, in particular, in goods"^{[6; p.27]}. If an idea is a form of comprehension of the essence of things and their ontological principles, then the principle is a generalization of these ideas or knowledge about the subject. Without its scientific explanation, legitimation is impossible. Scientific knowledge is a speculation about the outside world as a whole through contemplation and theoretical reasoning, whereas knowledge in the legal field is a set of information that is the result of generalizing information and establishing certain patterns in relation to tangible and intangible benefits. The knowledge of jurisprudence as a science is a separate field of scientific knowledge, therefore, the scientific argumentation of the idea of the principle of dualism in copyright should be based on the structure of the scientific method.

We use the approach to the structure of the scientific method as the main way of obtaining and confirming new knowledge, proposed by E. A. Bezlepkin, as the basis for substantiating or argumenting the principle of dualism in copyright, where the first level is a subject–conceptual or ontological one and denotes the disclosure of the idea of one of the possible forms of the systemic organization of the object under study, and the two subsequent others – The operational–normative and logical approach are designed to investigate its implementation in practice and its features ^{[7; p. 75]}. It can be argued that all three levels proposed by him are aimed at conceptualizing the phenomenon under study, based on its concretization and operationalization. This point of view does not contradict V.P. Gribanov's understanding of the methodologism of consideration of the legal principle, where the analysis of relations and patterns underlying it is the primary one in revealing the content of the legal principle, and the clarification of the content on the basis of legal norms is secondary, since "the essence of the content of legal principles is reflected in the norms of law"^[5].

Based on these methodologies of consideration, taking into account the requirements of discursivity, the concretization of the principle of dualism must be carried out taking into account circumstances that can change or influence its existence, in connection with which the objectives of this study are presented as an ontological, based on an analysis of the expression of the principle in the system of legal norms at the stages of copyright development, and the philosophical justification of the principle. The applicability of the formal logical method, the analysis of legal sources, along with the analysis of the development of legislative regulation and the legal doctrine of the field of copyright, is justified by the need to identify the ontological prerequisites for the formation of the principle. Analysis and synthesis in philosophical substantiation is represented by methods of extrapolation of knowledge from philosophical discourse into the legal field, in order to obtain the result of reflection on its essence.

The significant influence of German legal thought in general on the formation of civil law in the Russian Empire of the XIX century is noted by A.M. Gulyaev, on the formation of civil protection of the author's personal interests by A.G. Matveev, in this regard, it should be pointed out the similarity in the genesis of copyright in Germany and Russia, expressed in the initial identification of the author's rights with the right of ownership in the German legal doctrine of the XIX century., to a greater extent linking copyright with the property component of the author ^{[8],[9; p.125]}. In substantiation of this judgment, one can cite the opinion of Adolf Frank (A. Franc) (1809), who recognized that literary and artistic property are not equivalent to real property, but believed that copyright is a material value, and the work as an object of ownership has a "bodily form"^{[10; p.201]}. However, according to Otto Friedrich von Girke (O.Girke) (1841), copyright is unequal to property law, since it is associated with the personality of the author, and the preservation of the author's rights to the work is mediated by the protection of his personality ^{[10; p.201]}.

The presented judgments indicate that in Germany at the beginning of the 20th century there was no single idea of copyright, it was a combination of elements, but not complexes, of property law and personal rights, this actually meant that copyright is a special form of their expression, and their relationship is directly related to the assertion of dualistic and monistic concepts of copyright. The monistic nature of German copyright and the dualistic nature of French copyright are noted by Russian scientists (A.G. Matveev, N.V. Shcherbak, etc.). The monistic theory is based on the hypothesis of a single author's right and an indivisible set of his interests, whereas the dualistic one separates independent non-property and property components. The monistic nature of German copyright is based on its representation as a general right of the individual, the consequence of which is the principle of non-transferability of the exclusive right, which consists in prohibiting the alienation by the author of full rights to the work, and the associated consolidation of the right of exploitation, allowing the transfer of the right to use the work, under a contract limiting the type of use.

As for the development of Russian pre-revolutionary copyright, the views on its nature in the legal doctrine were different, their most complete typification is given by I.G. Tabashnikov (1844), who identified groups of views of writers and scientists on literary property: denying the existence of literary property and basing copyright on privileges (Renoir, Spasovich); equating copyrights to property and non-recognizing property rights (Wechter, Jolly, Klostermann); recognizing property rights (Kramer). However, I.G. Tabashnikov himself recognizes the duality of ownership of the work, arguing this with the representation of the German philosopher Johann Gottlieb Fichte, who identified the bodily and mental components of the book and saw in the mental component the material basis (content) and form (thoughts)^[11].

One can also judge the understanding of creative potential and its connection with personality by associate professor of the Demidov Law Lyceum A.A. Borzenko (1847) in the book "Personality, public, property (essays on law)" (1881) and the connection with the recognition of human labor as the subject of law and its attribution to legal benefits ^[12].

Earlier, in the light of Peter the Great's educational activities and his idea of Europeanization of Russia, great influence in the Peter the Great era was given to the work of translators, who acquired the status of persons constantly engaged in literary work, and scientific communities, which were granted privileges to print certain publications in order to develop educational activities.

In fact, in all the cases we have considered, we can say that the views on the author's work were initially based on the labor theory of property of John Locke (1632), according to which a person who has applied labor to resources that do not have an owner has a natural right of ownership to the result of any of his work^[13]. The development of the concept of artistic creativity as work, which has a pragmatic significance, is also the basis of Anglo–American copyright, where, from the point of view of assessing the originality of a work, minimum requirements are imposed, and the concept of copyright is associated with exclusive right, work is a purposeful human activity to satisfy needs and the possibility of extracting benefits and benefits. The foundation of this concept is a judicial precedent, when "in the first copyright case that reached the Supreme Court in 1834, the court ruled that "the author ... has ownership of his manuscript and can receive compensation against anyone who deprives him of it or, having improperly obtained a copy, tries to make a profit by publishing it. Copyright ownership grants the owner exclusive rights, which is a sign of ownership"^[14].

At the same time, adherence to labor theory in the emergence of copyright is not a reason to deny the emergence of special rights for the author of intellectual work, since, as Tracy Reilly rightly points out, "Locke, contrary to the opinion of modern scientists, supported intellectual property rights, recognized their protection by the theory of natural rights, his support for copyright was expressed in his proposal was an amendment to the bill on the regulation of the press, proposed in Parliament in 1695, in order to "secure the author's property in his copy or the one to whom he transferred it"^[15].

The identification of copyright with the right of ownership and its attribution to rights inextricably linked to the personality of the author is due to the legislative inclusion of copyrights by the draft Civil Code of the Russian Empire in 1905 in the chapter on common property and their attribution to movable property and patrimonial rights (paragraphs 37, paragraph 740), copyrights were recognized as equivalent to literary, musical or artistic property (item 1264), could be ceded "completely or in part" and transferred by will or law to heirs after the death of the author (item 1265)^[16]. Turning to the essence of patrimonial rights, it should be indicated about their attribution by the legislator to the right of ownership, the right in someone else's property, pledge and mortgage (paragraph 740). R.A. Lubsky refers patrimonial law to the system-forming element of the patrimonial state in Russia, giving it a restrictive meaning "not to allow the right to exist separately from the owner")^[17].

The attribution of copyright to real property is connected with the legacy of Roman law, which classifies things, including corporeal and incorporeal. The intangible nature of the latter objectively equates them to personal rights. From the point of view of M.V. Khvostov, Guy's classification of things into res corporals (material or corporeal) and les incorporales (incorporeal) had an essential meaning not in distinguishing things, but rights to them, in the latter case – these are "other subjective rights – either have something non-corporeal as their object or give the subject incomplete domination over the corporeal a thing"^[18].

The justifications we have considered allow us to assert a certain preservation of the author's connection with the work, associated with ensuring incomplete domination over the transmitted thing – the subject of intellectual labor, however, the full-scale implementation of the principle of dualism can be judged from the formed dualistic copyright system, based, according to N.V. Shcherbak, which is shared by A.G. Matveev, on the presence in the concept of the dualistic model of copyright ^{[19; p.481],[20; p.18]} in the legislation of inalienable personal rights, their independence with respect to property law and the right of the individual.

With the development of legal doctrine, the non-identity of property rights and the rights of the writer became obvious. The first attempt to comprehend the regulation of "ownership rights to works of science, literature, arts and arts" can be considered the analytical work of Professor of the Imperial Novorossiysk University A. F. Fedorov (1855) "On the issue of copyright for literary, artistic and musical works" (1896), in which he points out the insufficient protection of the author from unauthorized reproduction of creative products by outsiders, defenselessness from free translation into another language^[21].

An essential point in the pre-revolutionary legal doctrine should be noted the emergence of the idea of the novelty of work created by intellectual activity, noted by A.A. Borzenko (1847): he considers the emergence of property rights possible provided that its result will be the creation of a new object of practical importance and bearing a previously non-existent public benefit^[22].

The development and adoption of the Copyright Law of 1911 (hereinafter referred to as the Law of 1911), which incorporated the ideas of the German Laws of 1901 and 1907 and the Berne Convention (ed. 1908), was mediated by the need to introduce standards corresponding to international regulation.

The most significant points in the Law of 1911 should be indicated as follows. Firstly, it reveals for the first time the concept of "exclusive right" in the meaning of various ways to reproduce, publish and distribute one's work (paragraph 2), as a transferable and alienable property right of a special kind arising in relation to intangible objects, which actually replaced the concept of "literary, artistic property"^[22]. For the first time, the law mentions the preservation of the form of the author's work in terms of the inadmissibility of converting a narrative work into a dramatic form or a dramatic work into a narrative (paragraph 31), and its content, which contextually follows from the prohibition to a person to whom copyright has been assigned without the consent of the author or his heirs to publish or publicly perform this work with additions or abbreviations and in general, with changes, except for such changes caused by obvious necessity, which the author could not in good conscience refuse to agree to (paragraph 20)^[23]. In fact, this means that the law recognizes the connection "between one or another inner state of the author on the one hand and his works on the other. The author is given the opportunity to store the products of his spiritual creativity at the level of his individuality and his personality"^[24]. Secondly, paragraph 3 of the 1911 Law defined the principle of novelty as protection of the essence of a work in the context of creating a derivative work, replacing the mechanical principle of calculating the volume of borrowing material from someone else's work. Thirdly, despite the fact that from the point of view of the structure of the law it is impossible to assert a transition to a pandect structure in codification, the allocation of the subject of legal regulation in the title of the law indicates the beginning of the formation of a separate institution of copyright, which indicates recognition of its autonomy, independence and stability of the system of relations regulated by it.

The abrogation of the Law of 1911 was a measure of political regulation, the further trend of monopolization of copyright in the Soviet period was associated with the adoption of a number of decrees of the Council of People's Commissars and the Central Executive Committee, in fact, which are the implementation of the principle of the predominance of state interest over personal, and was focused on ensuring an ideological system. T.I. Ryakhovskaya connects the reason for the rejection of foreign experience in the rulemaking of the Soviet period with the belief in the harmful influence of capitalist ideas, while pre-Marxist legal ideas were actually recognized as contradicting the new ideology^[25]. A feature of the legal regulation of domestic copyright in the USSR era is the possibility of recognizing any work as state property, established by decree of the Council of People's Commissars of the RSFSR dated 11/26/1918 (Article 7), as well as equating artists, writers and other creative figures to employees of the "Fundamentals of Copyright", Resolution of the Council of People's Commissars of the USSR dated 05/16/1928 (paragraph 17, which consolidated the establishment of the legislation of the Union republics the norms governing the publishing agreement for literary and musical works, the agreement on the assignment of rights to public performance of works in terms of reflecting their mandatory content) ^[26],[27]. Personal rights in general were significantly limited, which is explained by the restriction of personal property in general, which was based on labor income, its composition was also limited (families were allowed to have only one apartment building) (Article 25), in this regard, it seems logical to indicate the possibility of buying out copyright by the state in the 60s. (106)^[28].

The author's property rights were limited by the concept of remuneration under the copyright agreement, with established limits of certain rates (Article 507 of the Civil Code of the RSFSR of 1964). The theory of remuneration underlying Soviet copyright has a "pre-Soviet" origin, it is most fully justified in the doctrine of G.F. Shershenevich on copyright, which, in his opinion, played a median role the role between property and obligation law, in which remuneration for work actually excludes the protection of non-property rights and is exclusively of a proprietary nature^[29]. M.V. Kubyshko points out that in fact, under the conditions of socialism in Soviet copyright, only the right to receive remuneration could be considered the only property right, the concept of Soviet copyright referred to the right to reproduction and distribution to the non-property, along with the right to help the author from the publisher, the right to deposit the manuscript, the right to translate^{[30; p.148]}.

Much attention in the Soviet legal doctrine of the 1960s was paid to the issue of personal rights, mainly due to the recognition by the legislator of the possibility of material compensation for moral harm and its limits, which was atypical from the point of view of Soviet ideology. Despite the recognition by the legislator of the personal and property rights of the authors, scientists expressed opinions about their unity, since the connection of personal non-property and property rights in general Soviet civil law was presumed by Article 1. of the USSR Law of 08.12.1961 "On Approval of the Foundations of Civil Legislation of the USSR and the Union Republics" (hereinafter – the 1961 Law) and concerned the definition of the subject regulation of the Soviet civil legislation – "property relations and related personal non-property relations"^[28]. In this regard, until 1964, copyright was legally indivisible, it was a "legal relationship in which personal and property elements are combined"^{[31; p.4]}.

Article 479 of the Civil Code of the Russian Federation of 1964 determined that the author had the following rights: "to publish, reproduce and distribute his work in all ways permitted by law under his own name, under a conditional name (pseudonym) or without naming (anonymously); to the inviolability of the work, to receive remuneration for the use of the work by other persons, except in cases specified in the law"^[32]. The unification of some of the author's rights in the legal norm is associated with the presence of a single object, since it was assumed that all legal relations arise about the work and are aimed at its implementation, preservation, the possibility of distribution and profit. The non-property rights of the author were disseminated, but can be distinguished from Article 496 of the Civil Code of the RSFSR of 1964, Article 499 of the Civil Code of the RSFSR of 1964 and look like: the author's right to a name, in fact the opportunity to publish a work under his own name or pseudonym, the right to protection from free use of the work, the right to protection in case of violations of the terms of use and the right to inviolability of the work.

Copyright of the Soviet period can be characterized as a closed, original legal system in which the influence of socialist ideology was expressed in the non-recognition of private intellectual property for the benefit of the public^{[33; p.13]}.

The legislative distancing from the issue of the originality of a creative work for a long time is explained by the ideological state concept, which paid great attention to the social and political context of the works, bypassing their originality. This concept served as the basis for the cultural phenomenon of socialist realism, a trend that lasted from the 1930s to 1991, as well as the adoption of appropriate legislative decisions. The content of the works had to correspond to the spirit of the time: reflect the construction of socialism, popularize the way of life of the common people. In 1934, administrative and control bodies were established (the Union of Writers of the USSR and the People's Commissariat of Education of the USSR), which represented segregation mechanisms: "they began to supervise the cultural policy of the country and select artists and writers who meet their standards," which led to both mass emigration of cultural representatives ("philosophical steamship") and the deprivation of professional status of persons who did not meet socialist criteria, the amount of royalties in practice depended on the literary reputation of the author, membership in the writers' union etc.^{[34; p.448]}. Paintings and works of art approved for public display for publication had to comply with the principles of nationality (to be understandable to people without special education), idealism (to depict daily labor feats of the people), to be realistic (without metaphors, imagery, symbols and abstractions).

The cultural heritage created in the era of social realism is not subject to diminution, however, socialist realism, which proclaimed the presumption of conformity of artistic works to socialist ideals, excluded any continuity, and therefore is criticized "for the mechanical repetition of stereotypes, restriction of creative freedom and discrimination against other trends in art"^{[34; p.450]}. From the point of view of fine art of the era of socialist realism, V.F. Chirkov recognizes the exertion of "ideological pressure" on him, which "proved unable to displace the actual artistic principle in works of all types and genres of fine art"^[35].

There was no legislative indication of the creative nature of copyright objects from 1911 to 1961, in Soviet copyright it was formally and secondary to the object (Part 1 of Article 475 of the Civil Code of the RSFSR of 1964, Article 96 of the Law of 1961): copyright extended "to works... expressed in some objective form that allows reproducing the result of the author's creative activity"^[32]. Reproduction actually represents a repetition or recreation of some kind of experience and in this understanding can be represented as a combination of personal experience and the experience of the author of the object, whereas the creative nature of a work of science, literature or art in modern legislation is derived from the provisions of Article 1228 of the Civil Code of the Russian Federation using topics through understanding that they have an author as a subject of activity and character his work^[36]. The semantic transfer by the legislator of the nature of the object of copyright to copyright activity is explained by the emphasis on the type of activity, and not the characteristic of the object.

One of the positive trends of Soviet copyright law that influenced the formation of legal doctrine is the legislative introduction of the concept of copyright agreement, its types and the consolidation of rights and obligations related to its conclusion (Articles 503, Article 504 of the Civil Code of the RSFSR 1964). A meaningfully open list of types of copyright agreement covered all possible ways of creating works, the conclusion of copyright the agreement on the transfer of a work for use had the purpose of using the work, in this regard, the research contour of the Soviet copyright system was aimed at resolving the possibility of transferring copyright and its limits. Soviet scientists, with some exceptions, without recognizing the equivalence of copyright and property rights, continued to operate with the pre-revolutionary concepts of "alienation", "assignment", "permission", allowing the alienation of some copyright rights (V.I. Serebrovsky), but only for a certain period ^[37]. The positions of non-transferability of copyright and the permissibility of its alienation deserve separate consideration, within the framework of which one can distinguish the theory of assignment (V.A. Kabatov) and the theory of copyright resolution (M.I. Nikitina) ^[38],[39]. The theory of assignment is a continuation of the pre-revolutionary identification of copyright and property rights, the recognition of which generally contradicted the spirit of the socialist time, and boils down to the possibility of the author transferring some rights to the work^[40]. The theory of permission is based on the idea of a special subject of copyright – the author, who cannot be recognized as either the owner or the publisher, but can allow publishers as intermediaries in the publication of a work to carry out certain actions.

The monistic view of copyright in the Soviet legal doctrine is explained by the guidance of the provisions of pre-revolutionary law and an attempt to comprehend them in relation to the legal reality of modern times and current legislation. The only independently formalized right, which was practically not given doctrinal analysis in Soviet times, can be recognized as the right to inviolability of a work, at the beginning of its legislative development associated with the transfer of exclusive rights (paragraph 20 of the Law of 1911), combined with the right to protection from distortion of the author's name and subjectively limited by the concept of "author–publisher" or "author–publisher /entertainment enterprise" (clause 13 of the Fundamentals of Copyright", put into effect by the Resolution of the Central Executive Committee of the USSR dated 30.01.1925 of the USSR, clause 18 of the Fundamentals, put into effect by the Resolution of the Council of People's Commissars of the USSR dated 05/16/1928), finally legislated into an independent non-property right in the 60s (Article 98 of the 1961 Law, Article 479 of the Code The RSFSR in 1964).

As a result of the conducted research, it is necessary to indicate the following identified problems of the formation of the dualistic copyright system of the pre-revolutionary and Soviet periods. The problem of the formation of the dualistic system of Russian copyright is both the tendency characteristic of Germany and France to identify the author's rights with the right of ownership, and the monistic orientation of its development during the Soviet period, associated with the recognition of the unity of property and non-property rights by the legislator. Despite the recognition of the right to inviolability of the work, property rights were significantly limited and associated with non-property rights. If the pre-revolutionary criticism of copyright was associated with the dilemma of its recognition as a property right, property right or personal right, then there was a legal dissonance in the Soviet doctrine: the legislator, highlighting the rights of authors in a separate section, attributed the results of intellectual property to property law, recognizing the inalienable nature of certain rights, which initiated the allocation of reflections on the possibility in the legal doctrine and the volume of transfer of copyrights that do not have novelty, and gave reason to I.A. Pankeev to note: "the post-revolutionary nihilistic attitude to intellectual property issues delayed the development of the country in this direction for almost 80 years"^{[41; p.29]}.

The turning point, which means the transition of Russian copyright into the modern global international legal space, should be considered the adoption of the Law of the Russian Federation "On Copyright and Related Rights" dated 07/09/1993 No. 5351-1 (hereinafter referred to as Law No. 5351-1) and the accession in 1994 to the Berne Convention for the Protection of Literary and Artistic Works, in order to integrate into the international legal space, the process of further development of international legislation and ensuring mutually beneficial results for all parties involved in it^[42]. The law established the creative nature of works subject to legal protection (paragraph 1 of Article 6), separated property and non-property rights (Articles 16, Article 15), indicated their independence: "personal non-property rights belong to the author regardless of his property rights and are reserved for him in case of assignment of exclusive rights to use the work" (paragraph 3 15), it was argued that "copyright in a work is not related to ownership of the material object in which the work is expressed" (paragraph 5 of Article 6). However, despite the positive aspects of Law No. 5351-1 in the form of expanding the range of objects subject to legal protection and maintaining an open list for each objectified form of works subject to protection (paragraph 2 of Article 6), disclosure of a large volume of terms used in the creation and use of works (Article 4), as well as the continuity of some provisions of the Berne Convention, which separately highlights the personal non-property rights of authors (paragraph 6 bis) (Article 15 of Law No. 5351-1), the legal regulation of copyright was non-systemic, since copyright was also regulated by the Constitution of the Russian Federation, the general norms of the Civil Code concerning the protection of non-property rights in general, and the Law of the Russian Federation No. 3523-1 of September 23, 1992 "On the Legal Protection of Programs for electronic Computers and databases"^[43].

This dissonance was neutralized by the legislative recognition of the differentiation of personal non-property and property rights in modern legislation in the current version of the Civil Code of the Russian Federation (paragraph 1 of Article 2), which indicates the separation of property and non-property relations "based on equality, autonomy of will and property independence of participants", whereas in the earlier version of the Civil Code of the Russian Federation No. 27 from On 01.12.2007, this norm pointed to the regulation of "property and related personal non-property relations": previously, Article 128 of the Civil Code of the Russian Federation, the concepts of intellectual property and the exclusive right to the result of intellectual activity were recognized as equivalent and related to objects of civil rights (Article 128 of the Civil Code of the Russian Federation), and personal non-property rights related to the subject of civil regulation only in connection with property rights (Article 2 of the Civil Code of the Russian Federation), the right to a name, the right of authorship, and other non-property rights were attributed to intangible benefits (Article 150 of the Civil Code of the Russian Federation)^[36].

The declaration of the inalienable rights of the author with their non-identification with the rights of the individual essentially postulates the legislative recognition of the author as a special subject of activity, objectifying his inner forces in creating a work with certain creative abilities that distinguish him from the general civil subjective understanding. The ability of citizens to own copyrights is included in the content of civil legal capacity (Article 18 of the Civil Code of the Russian Federation), for its transformation into a subjective right, a legal fact is necessary, whose role is performed by the creation of a work in the meaning of a legal act, as an action not directly aimed at the emergence of a legal relationship, but entailing certain legal consequences.

Technically, the formation of a dualistic model of intellectual law is connected both with the compilation in the modern part IV of the Civil Code of the Russian Federation of the norms of Law No. 5351-1 and the rules of the Civil Code of the Russian Federation in previously existing editions, which are of a general nature, but are not related to accidental borrowing, since the textual and semantic content of the provisions of the IV Civil Code of the Russian Federation differs significantly from the previously existing legislation, which corresponds to the axiom of lawmaking about the unacceptability of editorial changes without revising the outdated law in essence. Some norms were reduced or replaced by more appropriate semantic expressions, such as the "right to protect the reputation of the author" (paragraph 1. Article 15 of Law No. 5351-1), which in its meaning was "the right to protect the work, including its title, from any distortion or other encroachment that could damage the honor and dignity of the author", which meaningfully corresponded to paragraph 1 of Article 6bis of the Berne Convention, where the protection of the honor and dignity of the author implies the right to "demand recognition of one's authorship of the work and to counteract any perversion, distortion or other modification of this work, as well as any other encroachment on the work" was replaced by the rights to the inviolability of the work, to the name, which is again returned to the copyright, and the right to authorship (paragraph 2 of Article 1255 of the Civil Code of the Russian Federation)^[43]. From the point of view of legal technology, this is explained by the principle of adequately reflecting the essence of the concept and highlighting the author as a special subject of creative activity, since business reputation in general is an intangible benefit, and means a public assessment of business and professional qualities, regardless of the type of activity of the person; honor, dignity and business reputation are defined as separate objects of protection of Art. 152 of the Civil Code RF^[43].

The provisions of the modern Civil Code of the Russian Federation concerning the institute of copyright do not directly indicate the duality of copyrights, but according to the semantic expression of the following legal norms, the independence of non-property and property rights consists in: recognition of Article 1226 of the Civil Code of the Russian Federation of intellectual rights as composite, including property law, personal non-property rights and other rights (right of succession, right access and others), independence of intellectual rights from ownership rights to a tangible medium (Article 1227 of the Civil Code of the Russian Federation), recognition of the right of authorship, the right to a name and other personal non-property rights and their inalienable rights, an indication of the initial occurrence of the exclusive right of the author and the possibility of its alienation (Article 1228 of the Civil Code of the Russian Federation), giving an unclassified list of arising the author has the rights, in connection with the creation of the work, in paragraph 2 of Article 1255 of the Civil Code of the Russian Federation: the exclusive right to the work, the right of authorship, the author's right to the name, the right to inviolability of the work, the right to publication, the right to recall, the right to inviolability of the exercise of personal non–property rights, exclusive right - property rights, as well as other types of rights (paragraph 32 of the Resolution of the Plenum No. 10)^[44]. All the listed novels related to the adoption of Part IV of the Civil Code of the Russian Federation are legislative recognition of the dualistic theory of Russian intellectual law, "evidence of formal and conceptual dualism"^{[45; p.66]}.

Despite the recognition by the legislator of the institute of copyright as part of the sub-branch of intellectual property, and even the allocation by some authors of the sub-institute of copyright, presented as "a system of norms governing public relations arising in connection with the creation and use of works of science, literature and art," it is worth noting the prevailing trend of criticism of copyright, which is a system of views, which is an actual opposition to copyright, in connection with which the justification of the principle of dualism of modern copyright from an ontological point of view must be carried out taking into account the consideration of criticism, which, based on the essence and laws of the existence of law, calls into question the validity of the idea of the principle of dualism of copyright as a substantial legal equality of subjects of law endowed with non-identical property and non-property independent complexes of rights^{[46; p.96]}.

Modern criticism of copyright is largely based on the judgments of thinkers of the past. So, Caris J. Craig points out that the creative process is characterized as collective, not individual, and therefore it seems difficult for them to explain how ownership can be granted to an individual on the basis of individual labor. As a justification for his point of view, he cites Horatio Specter's argument that Locke's theory does not justify ownership of the result of intellectual activity due to the interdependence of the nature of human culture as a whole, since the labor used by a person does not explain the total value of the goods, but explains only the added value^[47]. A similar radical criticism of copyright was contained in the doctrine of the American economist and publisher Henry Charles Curry (1793), who justified the absurdity of the existence of copyright as such in connection with the author's borrowing of facts and ideas from writers of previous years and the external environment ^[48]. Criticism of Caris J. Craig does not take into account the uniform consolidation in Article 27 of the Universal Declaration of Human Rights of 1948 of human rights to participate in the cultural life of society and enjoy its benefits, as well as the rights to protect moral and material interests associated with the creation of a creative work, and also bypasses the individual and personal characteristics of apperception as properties of the psyche, which, according to A. A. Potebnya, there is the participation of the strongest ideas in the creation of new thoughts: "when creating a word, as well as in the process of speech and understanding, which occurs according to the same laws as creation, the impression already received is subjected to new changes, as if it is perceived a second time, that is, appercipated," and the transformative function of art itself as a whole^{[49; p.72]}.

R.T. Nurullaev's remark seems logical that in the personal theory of copyright, the phenomenon of the possibility of transferring exclusive rights to another person seems difficult to explain, due to the inseparability of the result of intellectual activity from the personality of the author^{[50; p.94]}.

From our point of view, firstly, it cannot be argued that the dualistic model is completely based on personal theory, since the basis of the author's realization of exclusive property rights is the economic interest associated with receiving remuneration for intellectual work. The possibility of partial transfer of rights is explained by the author's will: the author can alienate the exclusive right belonging to him, but is not obliged to do so. Such an expression of will is a form of expression of intuitive law, considered by L.I. Petrazhitsky in the meaning of a real individual sense of justice that permeates the inner world of a person^[51].

Modern domestic criticism of copyright is based by R.A. Merzlikina and A.S. Yumashev on the psychological concept of creativity in the legal field and the impossibility of defining its criteria, whereas in psychological science itself "the concept of creativity is only being developed by psychology" ^{[52; p. 21]}. In fact, the subject of criticism in this regard is the interdisciplinary approach of jurisprudence, expressed in the use of terms of a related discipline in the conceptual apparatus, which, according to V.A. Zatonsky, is the most effective methodological tool for studying problems at the junction of various sciences. Criticism identifies law with a closed system, and also contradicts L.I. Chestnov's opinion about the possibility of separating law from other social phenomena only analytically, since it is not a self-sufficient phenomenon and a closed system^{[53; p.392],[54]}.

S.V. Usoltseva points out the undesirability of using the concept of creativity in jurisprudence, based on its incomprehensibility^[55]. The sphere of copyright regulation is the relations arising in connection with the creation of works, therefore, the connection between legal awareness and the terminology of heuristics and psychology is obvious, and its reflection in the norms of law. Speaking about the content of law, it should be noted that, according to A.S. Sidorkin, it can be disclosed from the point of view of the natural law approach through non–legal concepts and phenomena^{[56; p.6]}.

V.A. Khokhlov argues that from the point of view of legal regulation, the qualification of the result associated with the creation of a work is important, "and not an assessment of the degree of tension of thought and the originality of the approach"^{[57; p.44]}. The ownership of copyrights by persons engaged in collective work on the creation of a product and the establishment of their authorship is recognized by the courts only in relation to those who have made a creative contribution, even if they conclude partnership agreements recognizing the authorship of other persons providing organizational support^[58].

It should be noted that the court does not approve the unconditional creative contribution of the author to the creation of protected copyright objects, the analysis of creative participation is carried out on the basis of expertise, the establishment of exclusive rights for the person claiming them is based on the principles of proof, in the process of investigating the facts and circumstances justifying the claims and objections of the persons involved in the case, as well as other circumstances relevant to the procedural consideration of the case and the adversarial nature of the parties. By the decision of the Oktyabrsky District Court of Ufa of the Republic of Bashkortostan dated 10/19/2021 in case No. 2-3262/2019 on the claim of Mukhametdinova N.K. to LLC TRUST KPD to recover compensation for copyright infringement in connection with the use of her literary text without attribution in the published book "We are building cities of KPD for 50 years" in satisfaction of the claim it was refused on the basis of a linguistic examination, due to the fact that the texts of Mukhametdinova N.K., although they are primary in relation to the text of the book, but do not represent a complete (ready-made), compositional constructed work with a sign of reproducibility, a significant part of the draft fragments compiled by Mukhametdinova N.K., are "alien" texts (jubilee and memoir speeches of other people, written in the 1st person, transmitted by Mukhametdinova N.K.), it is not possible to determine the originality and creative nature of the materials, because the corpus of "alien" texts underlying the draft fragments of Mukhametdinova N.K. was not established and submitted for examination. During the judicial review, the plaintiff's obligations under the contract with the defendant were studied, some of which could be regarded as creative, while others were of a technical nature, the editor's work, on the contrary, was recognized as creative: "the primary text has been improved, reworked creatively, in an original way, taking into account the goals of this book (anniversary, festive edition of the KPD Trust, glorification of employees, organizations, glorification of history, advertising of objects under construction). The secondary, derived text has become more concise, dynamic, compositionally and ethically verified, meaningfully vivid, saturated with vivid images, expressive, stylistically homogeneous, literate and accessible to the target audience"^[59].

Recognition of the creative component of a work is based on the presumption of creativity set out in paragraph 80 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 04/23/2019 No. 10 "On the application of Part Four of the Civil Code of the Russian Federation", according to which the results of intellectual activity are assumed to be created by creative work, until proven otherwise, this means that its result must be recognized as original, unique, peculiar, non-standard. The originality of the work is recognized as a condition of protection by international acts: "in addition to originality, understood as the result of the author's personal creative work, no aesthetic or qualitative criteria are established to determine whether a database is subject to copyright protection, and, in particular, no aesthetic or qualitative criteria are established"^[61].

It can be argued that the concept of dualism is based on the idea of the preservation and inalienable rights to a work related to the author's work, while other rights can be transferred to other persons, in connection with which it seems advisable to further philosophical substantiation of the principle of dualism, related to the consideration of creativity as an autonomous system or substance mediating the phenomenon of non-transferability of some copyrights He's right.

The need for a philosophical justification of the principle of dualism is explained by the fact that "any new idea, in order to become either a postulate or a principle expressing a new ideal and standard of scientific knowledge, must go through the procedure of philosophical justification"^[62].

The philosophical foundations of the concept of the principle of dualism are contained in the concepts of being set forth in the works of philosophers and scientists, starting from the ancient world in understanding the problem of the relationship between soul and body as opposite principles, and understanding opposites is one of the productive directions in philosophy.

The emergence of the concept of "dualism" as two substances: material and spiritual is associated with the name of Christian Wolf (1679)^[63]. Being and thinking are separated by him as well as physics and metaphysics. Wolf's dualism manifests itself in the separation of "things in general" as conceivable, from its essential (necessity, eternity, immutability) and inherent characteristics (location, magnitude), which underlie the multiplicity of things^[64]. Here it is necessary to pay attention to the fact that in order to clarify the meaning of concepts synonymously used to express pairing, the most appropriate lexeme denoting the belonging of unrelated systems of rights to two is precisely dualism, since duality, binary is used in the meanings "contradictory", "concerning two, two"^[65],[66].

The essence of Rene Descartes' dualistic construction (1596), or substantial dualism, boils down to the postulation of the existence of two substances – physical and mental, which exhaust the entire universe. He actually separates "thought and matter (extension) to the absolute opposite"^[67]. Wolf's idea of essence and properties is transformed by Descartes in the definition of the categories "substance", "attribute" and "mode". These concepts have been known since the time of Aristotle, including in scholastic teaching, but R. Descartes defines them in his own way.

Substance is "that thing that exists", "there can be only one substance that does not need anything else at all, namely God. We can comprehend the possibility of the existence of all other substances only with the assistance of God"^[68]. From this point of view, substance represents the primordial and divine principle or psychophysical dualism. According to Descartes, in man there are bodily and thinking substances created by God, independent of each other. Descartes' anthropology is based on the dualism of soul and body.

An attribute is an immutable property of a substance. "Although a substance is known on the basis of any attribute, however, each substance has some one main property that forms its nature and essence, and all the others are associated with this property"^[68]. The only attribute of spiritual substance is thinking. Attributes are essential necessary properties. "The main attribute defining the essence of the mental is thinking, the attribute describing the essence of the physical is extension"^{[69; p.80]}.

The endowment of a thing with properties is actually the basis for Descartes' division of the world into spiritual and material components, where the main criterion is the attribute of the indivisibility of spiritual substance and the divisibility of material. This concept provides the basis for understanding separability and alienation as essential characteristics for distinguishing the spiritual and the material. In fact, such a division underlies the subject created by intellectual work, where its material essence acts as an explicit expression, and the author's idea appears implicit or hidden.

It can be argued that the philosophy of the twentieth century no longer aims to comprehend the spiritual and physical components of human existence and their relationship, rather it is aimed at understanding the role of man. The problem of substances in general is currently of little interest in philosophy. B. Russell generally defines substance as a metaphysical error of the previous philosophy ^{[70; p.332]}.

Separately, it should be noted the direction of non-reductive physicalism, which arose in the XX century., in fact, was a theory about the attribution of mental states to physical, but not reducible to their properties, the opposite in this sense to Cartesianism, while he recognized the uniqueness of the mental through its non-identity to the physical, in fact laid the foundation for the dualism of properties. From the point of view of Paul Churchland (1942) and Daniel Dennett (1942), substantial dualism was transformed into a dualism of properties, according to which there is only a physical substance with two types of properties: mental and physical^{[71; p.42]}.

The modern taxonomy of dualism theories is based less on the dualism of substances and more on the dualism of properties, the subject in most cases is recognized as identical and equivalent to the substance, forming a formal unity, and considering the substance out of connection with the subject seems impractical^{[72; p.26]}.

As an example of the dualism of properties, one can cite the theory of naturalistic dualism by David Chalmers (1966), based on the irreducibility of the phenomenal to the physical. It can be interpreted as a dualism of properties, since in it consciousness is represented as a natural phenomenon, obeying natural laws, but not reducible to physical facts. The properties of an object constitute its essential characteristics. The theory of naturalistic dualism by D. Chalmers allows us to preserve the heterogeneity of entities, without differentiating them into different worlds, as it is assumed in substantial dualism^[73].

Summing up this part of the study, it can be argued that the principle we are considering is based on the attributive dualism of the properties of copyright objects. The norm of Article 1259 of the Civil Code of the Russian Federation includes works of science, literature and art as objects of copyright, regardless of the merits and purpose and ways of its expression, that is, the law protects the form of the results of creative work (images, language, structure) without indicating their content. However, the very concept of "work" is not disclosed, it contains a direct indication of the creative component of the work for the recognition of authorship: the descriptive disposition of the legal norm of Article 1257 of the Civil Code of the Russian Federation regarding the recognition of "the author of a work of science, literature or art is recognized as a citizen whose creative work it was created" allows us to consider the above-mentioned objects in a logical structure and assert that any The object of copyright must have the following attributes: creative nature and be objectified or materialized.

From this point of view, the principle of dualism of copyright is based on various evaluative categories of its objects, expressed by the qualitative adjectives "creative" and "objectified", the principle is based on an understanding of the object of copyright as a complex with various systems of material qualities and systems of ideal features.This conclusion positively correlates with the recognition of the distinction between ownership of a tangible copyright object and an intangible object, the idea expressed in paragraph 1 of Article 1227 of the Civil Code of the Russian Federation regarding the independence of moral rights and property rights to a thing: "Intellectual rights do not depend on ownership and other proprietary rights to a tangible medium (thing), in which the corresponding result of intellectual activity or means of individualization are expressed."

Based on the conclusions drawn, further consideration of the operationalization of the principle of dualism in copyright is justified by considering the dualism of powers consisting of property and moral legal possibilities to carry out or demand certain actions causally based on the properties of its objects.