Be brighter, put out the lighter

Every cigarette packet displays the phrase "Smoking is injurious to health", but it is unclear how many smokers quit smoking after reading it. Some years ago Russia passed a law obliging film providers to warn viewers before a film that it includes scenes of smoking tobacco. Today films contain far fewer smoking scenes, but old films are still popular in Russia, so the smoking warning appears every time that a film is shown.

Two companies concluded a licence agreement to broadcast three documentaries on television and by cable: Your Choice, Time to Think and Our Generation. When broadcasting the films the licensee, without obtaining approval from the licensor, added an intertitle bearing the phrase “Smoking is injurious to your health”. The licensor believed that the intertitle damaged the author's creative idea, undermined and distorted the content of the films and violated the author's right to the inviolability of the work. Thus, the licensor brough a court action against the licensee.

The first-instance court examined the case, evaluated the evidence on file and concluded that the plaintiff could not prove that the use of public service advertising (ie, smoking is injurious to health) contradicted the author's creative idea, nor did it undermine or distort the import of the works. Thus, there was no threat to the inviolability of the work.

The plaintiff appealed, and the court of appeal confirmed the conclusions of the first-instance court. At the same time, the court noted that it was not against the law to show public service advertisements regarding the damage caused by smoking immediately before audiovisual works in which a tobacco product or the consumption of tobacco is shown. Further, this was in accordance with the Law on Advertisements and the Law on Protection of Health. The plaintiff appealed to the IP Court, which upheld the lower court decisions.

The IP Court also noted that the right to inviolability of a work is a personal non-proprietary right which is effective regardless of the exclusive right to a work (Article 1255 of the Civil Code). This personal non-proprietary right cannot be assigned or transferred. Therefore, if the plaintiff is a legal person, it cannot be the author of a copyrighted work. Therefore  a legal person cannot acquire or own personal non-proprietary rights regarding the works at issue.

The court concluded that the plaintiff had made claims regarding personal non-proprietary rights which it could not own under the law. This fact alone was sufficient to reject the plaintiff’s claims. Further, the court stated that the plaintiff had not proven that the inclusion of an intertitle with the public service advertisement “Smoking is injurious to health” was used as a foreword to the particular audiovisual works. The IP Court confirmed the lower courts' findings to the effect that public service advertisements shown before audiovisual works including a tobacco product or the process of smoking during broadcast programmes was in accordance with the law.

This is an Insight article, written by a selected partner as part of IAM's co-published content. Read more on Insight

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