Intellectual property. Objects author's and the adjacent rights

THE MINISTRY OF EDUCATION OF Republic of Belarus

THE ABSTRACT

On a theme: Intellectual property. Objects author's and the adjacent rights

MINSK 2011

The origin of the term "intellectual property" often contacts the French legislation of the end of XVIII century. Originally was considered, that the patent or the exclusive right to product use represent the contract between a society and the inventor (author): the society protects the legal owner, guaranteeing it compensation for promulgation of the invention (work of art) and agreeing to provide its unobstructed and exclusive use in industrial or commercial objectives. However already John Lock considered, that the intellectual property right should be considered as the natural right, instead of as the right based on the law.

The tradition leant against the theory of the natural right the approach to author's and to a patent right, received the most consecutive development in works of the French philosophers-educators. According to the granted theory the right of the founder of any creative result, a literary work or the invention is its integral, "natural" right, arises from the nature of creative activity and "exists irrespective of a recognition of this right the government". The right arising at the creator to the result reached by it was considered as similar to the property right arising at the person which work creates a material thing.

In France at "old regime" for the author the right to literary works has been definitively recognised. Revolution of 1789 dared all "privileges" therefore it has been proclaimed: "Everything, that the author opens for public, becomes a public property" (the Decree of the Constituent assembly of 1789), but soon even the new mode has reconsidered the decision. Two laws (1791 and 1793) For the first time in history guaranteed protection of all forms of creativity (literary, drama, musical, graphic) at reproduction by all known then methods. In report of ЛеШапелье which has laid down in a basis of the first law, affirmed, that "the most sacred, the most incontestable and if it is possible so to be expressed, most personal of all patterns of ownership is product which fruit of literary thought" is. In the prologue of the French patent law of 1791 it was said, that "any new idea, declaration and which realisation can be useful to a society, belongs to the one who has created it, and would be restriction of human rights not to consider the new industrial invention as the property of its creator". Fastening in the French legislation of concepts of the literary and industrial property became a consequence of such approach. Even earlier the idea about the copyright as "the most sacred kind of the property" has been embodied in laws of several states of the USA. So, in the law of the State of Massachusetts from March, 17th, 1789 it was specified, that "there is no the property belonging to the person more, than that which grows out of its brainwork"). Similar designs have been fixed in the legislation of many countries. In "Legal philosophy" underlined special value of protection of scientists and artists from an arbitrariness and encroachments on their rights, rendering of protection of their property as problems of encouragement of sciences and arts: "just as the most important encouragements of the industry there was a maintenance from robbery on the big road". However philosophical judgement of a category "intellectual property" till now it has not been made.

Along with the concept (or a design) in the form of the rights of the industrial property, literary, scientific, art or, in the most universal kind, - intellectual property, in the national right of some the countries the category "exclusive rights" ("the intellectual rights", "protection of the industrial rights", etc.), understood as the rights of a special sort is widely applied concerning the rights to results of intellectual activity. Especially it is characteristic for Germany.

For the first time the mention of intellectual property has appeared in the French legislation of an epoch of Great French revolution. The theory of the natural right which essence consisted that all made by the person, whether it be material objects or results of creative activity, admitted its property at this time dominated. Therefore the founder of results of creative activity had the exclusive right to dispose of them.

In XIX century the copyright of the French sample has served as model for other countries of continental Europe, and also, after the Second World War, and for the General declaration of human rights of 1948: "Everyone has the right to protection of its moral rights and the material interests which are growing out of scientific, literary or art works which author it is".

Some distinctions are connected with existence of Anglo-American and continental systems of the copyright. After in XVIII century protection of products began to admit for the first time not the privilege granted сувереном, and the right based on the law, there were two directions of scientific thought.

One of them - school of the natural right - has been apprehended by the countries with legal tradition of Rome.