Art. 146 of the Criminal Code. Violation of copyright and related rights

Each work, computer game or other information carrier has its own author. For the use of information in full by another person, as well as for deriving benefits from this, there is a responsibility under art. 146 of the Criminal Code.

The concept of

Copyright is a whole set of rules governing relations that are associated with the creation and use of works.

There are principles that are basic in this set:

- Freedom of creativity;

- moral and material interest;

- the ratio of personal interests of the author and the public;

- inalienability of this right.

As a rule, copyrights arise in the event that a work is created by some person and is new in relation to other works of the same nature. For example, if no publishing house has ever produced a book under a certain title, although it can be performed in a popular genre, it can be considered an object of copyright.

Or the opposite: if the publisher of N. issued an encyclopedia referring to any field of knowledge that coincides with one of the previously published books, then N. will not have copyright in relation to the encyclopedia. On the contrary, he in this case violated someone's copyright under art. 146 of the Criminal Code, and did not acquire its own.

Only the author or person who has received the rights to publish or work can distribute and advertise the object, as well as other options for its use.

Violations of an explicit nature

If we consider violations in this area, they can be either explicit or hidden. The first category of violations of rights refers to cases where the subject (citizen, organization) issues a work for his own. It can be like a book (text with preservation of original words and formatting), and a computer game (or film).

Concerning text editions, it should be noted that the question turns out to be controversial if the appearance and structure are similar, but the content is different. In this case there is no violation.

In the modern age of computer technology, virtually all literary works of various categories (including student work) are located on the World Wide Web. That is why when using any material, it is necessary to post information about where this material was copied, up to the name of the publishing house and other information. In other cases, if there is any doubt about originality, use the "Anti-plagiarism" system, which will check the coincidence of the text being checked with the existing ones on the Internet.

In addition, a gross and criminally punishable violation of rights, according to Art. 146 of the Criminal Code of the Russian Federation, is, for example, the distribution of disks with games or films. There are two options: the product has already gone into the rental or sale or there is a distribution of the pre-release facility (which was only announced).

Certainly, copyright infringement happens and with use of enough known works of art, the literature and other areas. Then here it is worth talking about not appropriating authorship, as everyone knows that, for example, Dostoevsky wrote "The Idiot", but about trying to take advantage of the existence of this masterpiece.

Assignment of authorship

A hidden way of violating copyright is to assign an object that is not yet known to the public. This happens when the creator has not yet managed to issue and publish anything under his own name, and this was used by another person.

Then, in case of a statement of claim, it is necessary to prove its involvement as an author to the publication of a work. This will require drafts and other information, as well as witnesses, which will indicate that it is the plaintiff who has copyright to any story or game.

Pirate discs

Option, when the right to any work has an organization, entails not only a lengthy litigation, but also huge losses in connection with the violation of copyright. Most of this concerns piracy, when licensed media with a film or computer game belong to a whole corporation.

Crimes that involve illegal copying and distribution inflict damage on rightholders in large numbers, usually in the value of all illegal copies sold at the price of licensed ones.

For example, if a normal disc with a movie costs 200 rubles, then all the pirated media sold are considered at the same price.

Violation of the rights of an individual

When considering cases under Art. 146 of the Criminal Code is not only important for the use of the product of someone else's work, but also the damage done. Part 1 of this provision indicates the infliction of damage to the right holder in a large amount. What does it mean? As the note to the article says, a large size is the cost of all copies sold for the amount of 100 thousand rubles. The person who committed this crime is not imprisoned, as is customary in the Criminal Code in most cases, but can be subjected to the following measures:

- a fine of up to 200 thousand rubles (that is, twice as much as the amount of damage);

- work: compulsory - up to 480 hours; Correctional - up to 12 months;

- arrest up to 180 days.

Thus, only appropriation is considered here, without propagation.

Sales use

In Art. 146, part 2 of the Criminal Code provides not so much appropriation as the distribution, duplication, acquisition and storage of an object of someone else's copyright, naturally, without the consent of the creator, with the sole purpose of marketing. In this case, if this fact is proved and major damage was inflicted, the guilty persons may suffer the following types of punishment:

- fine and compulsory work - in the same amount as in part one;

- work: correctional - up to 2 years; Compulsory - up to 2 years;

- Real time period up to 2 years.

This provision (Article 146, part 2 of the Criminal Code) already provides for imprisonment in contrast to the simple attribution of copyright. However, the term can give not real, but conditional. Everything depends on the circumstances of the case, characteristics, cooperation with the investigation and other factors that mitigate punishment.

Particularly qualifying signs

The more voluminous part in Art. 146 of the Criminal Code - Part 3, which includes the commission of acts provided for only by the second part:

• A group of persons who have united only for the crime in question or are an active criminal group;
• In a particularly large amount, which is defined in the note to the article and is 1 million rubles;
• A person who used his official position.

Penalties for these categories include the following types:

- forced labor up to five years;

- imprisonment up to six years; A fine of up to 500 thousand rubles (or without it).

Overestimate of value

Judicial practice under art. 146 of the Criminal Code of the Russian Federation contains such cases when it is necessary to observe artificially overestimated cost of copies of the work. Much depends on whether there is a licensed product on sale or not yet.

In the event that copies are already distributed by the rightholder, it is not difficult to calculate the damage, you just need to multiply the price of each licensed copy by the number.

If the price has not yet been determined, since the object has not yet been placed on the storage media, the damage can not be calculated. In this case, the cost must be announced by the victim. And this happens either by analogy with already sold similar products, or "from the ceiling."

The difference between damage and rights

In addition, victims often confuse these terms with the use of the object and the consideration of cases, or rather generalize these amounts. According to Art. 146 of the Criminal Code of the Russian Federation with comments damages - this is the amount of money in this case that was not received by the rightholder, if he himself sold his products. The cost of infringed rights is the costs incurred by the existing right holder for the acquisition of a license, the exercise of his rights with respect to the object, and so on.

So, for example, one case is illustrative, when under Art. 146 of the Criminal Code sentenced the sentence in the form of 22 years of a suspended sentence with a modest fine of 20 thousand rubles for the sale of counterfeit disks. It turned out that among the media sold was a film that has not yet been released. At the same time, it was impossible to assess the damage from the implementation, since this tape was not yet available on licensed materials. The cost of the right to distribute the film company was estimated at 6.5 million rubles.

Related right

By and large, film companies, publishers and other organizations that deal with the placement of information on any medium, there are no copyrights, since they did not create the work, but related ones. What does it mean?

A related right makes it possible to reproduce, print, record and perform other manipulations with the author's information. Therefore, it is also called exceptional. In order to notify the public that there are such rights to the work, a special icon is used (see the photo below).

Thus, if there is a violation of the author's rights as an individual, article 146 in part 1 may apply, and if there is a violation of related rights (copyright including if there are qualifying signs) - part 2 and 3 of the same article.

Civil order

Any company or individual, if the order of using the author's work is not respected, can apply to the court with a statement of claim. A criminal act will be in the case when a large amount will be proved or there will be special qualifying signs provided for in Art. 146 p. 3 of the Criminal Code (Part 3), along with the cost of law and damage.

However, if the price of the issue does not exceed the established size of the Criminal Code, you can try to resolve the issue peacefully by sending a claim with a notice of delivery.