IP/C/W/592  
 
18 September 2013  
(13-4926)  Page: 1/21  
Council for Trade-Related Aspects of 
Intellectual Property Rights  Original: English  
 
REVIEW OF LEGISLATION 
 
RESPONSES FROM THE RUSSIAN FEDERATION TO QUESTIONS POSED BY UNITED STATES 
 
 By means of a communication from the delegation of the Russian Federation, dated 
18 July 2013, the Secretariat has received the following responses to questions posed by the 
United States, as circulated in document IP/C/W/589. 
 
_______________ 
  
1. Article 1232 (IP/N/1/RUS/O/2 at 359): We are concerned that this may impose a 
formality. Do rightsholders have to regist er alienations of exclusive rights? Would a 
foreign author who sells or assigns a right have to register such sale/assignment in 
Russia? 
 
According to Article 1232 of the Civil Code of the Russian Federation (hereinafter – CC RF) in cases 
when the result of intellectual activity or means of  individualization is subject to state registration, 
alienation of the exclusive right to such result or such means by contract, pledge of this right, and 
grant of the right of use of such result or such me ans by contract, and likewise also the transfer of 
the exclusive right to such result or such means without a contract are subject to state 
registration.  
 Exclusive rights to such objects of intellectual property as inventions, utility models, industrial designs, trademarks and service marks (hereinaft er – trademarks) shall be recognized on the 
condition of their state registration. Regarding computer programs, databasesand topology of 
integrated circuits state registration is conducted at the option of the rightholder.   
Thus currently in the Russian Federation subjects to state registration are contracts for the 
alienation of the exclusive right to an invention, utility model, industrial design, computer program, database, topology of integrated circuit and contracts for grant of the right of use 
(including license contracts and franchise) and contract for the pledge of an exclusive right to 
invention, utility model, industrial design, trademark, topology of integrated circuit. 
 Order and terms of state registration of the fo ur abovementioned types of juridical facts are 
established by the Government of the Russian Federation. 
 In regard to objects of copyrights and related rights which do not need to make state registration,  
it is stipulated in Article 1259 of the Civil Code of the Russian Federation. 
 2. Article 1234 (IP/N/1/RUS/O/2 at 360-361): We have two concerns here. 
1) Paragraph 1 seems to require a complete transfer of all the rights as the only type of 
exclusive license that an author can give. Can an author provide an exclusive license 
limited to only one right (i.e., reproducti on) and maintain ownership of the other 
exclusive rights? 2) Paragraph 2 appears to impose a formality ( see the term "subject to 
state registration."). Do rightsholders have to register the contract of alienation of 
exclusive rights? Would a foreign author who sells or assigns a right have to register 
such sale/assignment in Russia? IP/C/W/592 
 
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Article 1233 of the Civil Code of the Russian Fede ration provides two kinds of contract on the 
disposal of an exclusive right by rightholder: Cont ract for the Alienation of an Exclusive Right (Civil 
Code of the Russian Federation, Article 1234) and License Contract (License Contract, Article 
1235). 
License Contract provided in Article 1234 of the Ci vil Code of the Russian Federation Contract for 
the Alienation of an Exclusive Right provide author's (rightholder's) possibility to transfer (alienate) 
the exclusive right belonging to him to a result of intellectual activity or a means of 
individualization in full scope to the other party (the recipient) that means absence of the copyright to use transmitted the result of intellectual activity in any way subsequently. By a contract for the alienation this right shall pass to the recipient acquiring the result of intellectual 
activity. 
In Article 1235 of the Civil Code of the Russian Federation stipulates that a license contract (on 
submitting of an exclusive license or nonexclusive li cense). Such kind of contract is widely used in 
all countries as the rightholder's method of disposal of exclusive rights whereby the licensor 
(rightholder) saves the exclusive right to a result of intellectual activity and the licensee may use the specific result of intellectual activity in stipulated ways on certain territory by certain terms. 
Conclusion of License Contract shall entail a transition of the exclusive right to the licensee. 
In case the author (rightholder) concludes a contract about alienation of the exclusive right to the 
result of intellectual activity or to the means of  individualization with whom provide a procedure of 
state registration, than this contract also needs to state registration. 
Mandatory state registration are required only in the Patent Rights Object (CC RF, Chapter 72), 
Achievements of Breeding (CC RF, Chapter 73), Me ans of Individualization (CC RF, Chapter 76). 
According contracts about alienation of the exclus ive right to the indicated result of intellectual 
activity shall be subject to state registration also (paragraph 2 of Article 1232 of the CC RF). 
Contracts about alienation of the exclusive rights to copyright or related right are not subject of 
state registration. 
 
3. Article 1235 (2) (IP/N/1/RUS/O/2 at 361- 362): We are concerned that this may 
impose a formality. Do rightsholders have to  register license contracts? Would a foreign 
author who enters a license contract have to  register the license contract in Russia? 
 
If authors (rightholders) conclude License Contracts about granting right to use the result of intellectual activity which needs to state registration, this contract also needs to state registration. 
 
Currently subjects of state registration are license contracts for the rights of use of an invention, utility model, industrial design, trademark, and topology of integrated circuit (paragraph 2 of 
Article 1232 CCRF). 
 That being said, it is worth noting that there is a pending project of Federal Law No. 47538-6 under consideration by the State Duma of the Federal Assembly « Introducing Amendments to the 
First, Second, Third and the Fourth Parts of the Ci vil Code of the Russian Federation and ndividual 
legislative acts of the Russian Federation», deve loped by the Presidential Council of the Russian 
Federation on codification and improvement of civil legislation (hereinafter – CC RF Project) 
 
CC RF Project suggests radical changes to state regi stration of contracts for the disposition of the 
exclusive right to objects of intellectual property . In developing the CC RF Project, provisions of 
the Singapore Treaty on the Law of Trademarks ratified by Federal Law No.98-FZ d.d. 23.05.2009 
«On Ratification of the Singapore Treaty on the Law of Trademarks» were considered. 
 
According to CC RF Project state registration of the grant of the right of use of an invention, utility 
model, industrial design, computer program, topo logy of integrated circuit, and trademark by a 
license contract can be conducted on the request of the parties without providing the contract itself.  
 IP/C/W/592 
 
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  4. Article 1240 (IP/N/1/RUS/O/2 at 363): We are concerned that this provision 
could nullify negotiated terms by authors of underlying works. For example, if a musical 
composition is used in a movie – either a pre-existing recording or one created for the movie – the author of the composition often maintains some rights, such as the right of 
public performance. Can a composer's contract require that a film incorporating her 
music only be shown in theaters/transmitt ed by broadcasters that are licensed to 
publicly perform musical compositions or  would 1240(2) nullify such a contract?  
 
A film (audiovisual work) is an independent complex object of author rights (Civil Code of the Russian Federation, Article 1259).  
According to paragraph 1 of Article 1240 of the CC  RF a person who has organized the creation of 
a complex object including several protected results of intellectual activity (e.g. the film) shall obtain the right of use of these films on the basis of contracts (for the alienation of the exclusive 
right or license contracts) concluded with the rightholders on the respective results of intellectual 
activity, which had been used in the process of creation of the film.  
Herewith License Contract about granting right to use (e.g. a music in the film) recognized be 
invalid in case if such contract contains limiting to use music in the film.  
 
Specified positions of the Civil Code of the Russian Federation correspond to positions of 
subparagraph (b) of paragraph 2 of Article 14 bis of the Berne Convention for the Protection of 
Literary and Artistic Works from 9th September 1886 (farther Berne Convention) which establishes 
that in the countries of Berne Union where legislation recognize authors as primary possessor of 
copyrights about author's cinematographic work who brought creative contribution in creation of 
this work; if they pledged to bring creative cont ribution in creation of cinematographic work and 
they have not some restrictive or special conditions, these authors may not prevent to use 
cinematographic work for reproduction, spreading,  public presentation and performance, report 
along wires for general information, broadcast on the air or another public report the work, and also forbid a subtitling and a duplication text of cinematographic work.  
Thereby author of music may conclude with a person who has organized the creation of a complex 
object License Contract about the use of his musical work in complex object, e.g. in the film, or contract for the alienation the exclusive right by created musical work. 
 
In case when concluding License Contract with author of musical work are used in the film, author of music grant to producer of film right to use his musical work in the film in all methods of use the 
film including public performance (in case of use in cinema, for example), communication over the 
air or by the cable. Moreover in accordance with paragraph 5 of Article 1263 of the CC RF composer shall keep the exclusive right to his work and may use his work in any method not 
prohibited by law, if he hadn't transfer exclus ive right to his work to the preparer in full. 
 
The procedure of Conclusion a Contract for the alienation the exclusive rights of the musical work is use when a musical work is created spatially for being included in audiovisual work. 
 
5. Article 1245 (IP/N/1/RUS/O/2 at 367): Please clarify what rightholders are 
covered by authors, performers and manufacturers in the sound recording context. 
Chapter 71 addresses the manufacturers of and performers on sound recordings, but 
there is no mention of their author. When you refer to the author of the sound recording receiving 40% of the fee collected, do you me an the author of the musical composition 
that is recorded? How is the musical composition encompassed on a sound recording 
compensated under Article 1245?  
 In Article 1245 of the Civil Code of the Russian Federation rightholders who have the right to 
compensation for free reproduction of phonograms and audiovisual works exclusively for personal purposes are authors (authors of musical works (music and text) fixed in the phonograms and 
authors of audiovisual works); performers (performers who fixed their performance in the 
phonograms and performers who fixed their perfor mance in the audiovisual works); preparers of 
phonograms and preparers of audiovisual works who have the exclusive rights acting (have 
recognized) on the territory of the Russian Federation in accordance with Articles 1256, 1321 and 
1328 of the Civil Сode of the Russian Federation. IP/C/W/592 
 
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  Rightholders have right to compensation in accordance with paragraph 2 of Article 1273 of the 
Civil Code of the Russian Federation. 
Importers and manufacturers of equipment and storage devices used for reproduction for personal 
purposes shall pay compensation to indicated righ tholders in accordance with Article 1245 of the 
Civil Сode of the Russian Federation. 
Chapter 71 of the Civil Code of the Russian Federa tion are mentioned in the question is dedicated 
to general questions of rights related with copyright. 
6. Article 1249 (IP/N/1/RUS/O/2 at 369): We are concerned that this may impose a 
formality. Do rightsholders have to register  computer programs or databases for those 
items to receive protection or need to regi ster "legally-significant actions" regarding 
computer programs and/or databases? What  must be registered under Article 1249? 
 
As defined in paragraph 4 of Article 1259 CC RF for th e protection of copyright, the registration of 
the work or other formalities is not required. With respect to computer programs and databases, registration is possible in accordance with su bparagraph 2 of paragraph 4 of Article 1259 and 
Paragraph 1 of Article 1262 CC RF. Such registration  is not right-establishing and is optional. 
 
If the rightholder has registered a computer program or a database in the Federal body of executive authority for intellectual property, contract s for the alienation of the exclusive right to a 
computer program or database as well as passa ge of the exclusive right to such program or 
database are subject to registration in the Fede ral body of executive authority for intellectual 
property (Paragraph 5 of Article 1262 CCRF) 
 
Article 1249 CC RF does not provide any provisions on registration of computer programs or database or connected legally significant action s being obligatory. The article considers fees 
collected for the taking of legally significant actions connected with state registration of computer 
programs, databases, contracts for the alienation of the exclusive right to a computer program or 
database as well as passage of the exclusive righ t to such program or database (paragraph 1 of 
Article 1249 CC RF) 
 
Unlike other results of intellectual activity or means of individualization, registered in the Federal body of executive authority for intellectual proper ty, fees for which are set by the Government of 
the Russian Federation, fees connected with computer programs, databases and topology of 
integrated circuits are established by the legislation of the Russian Federation on taxes and levies. The Tax Code of the Russian Federation establishes a list of legally significant actions for the taking of which state fees shall be collected, their amounts, procedure and times for payment, and 
also the bases for freeing from payment of the state fees, reduction of their amounts, 
postponement of payment or return of fees. 
 
7. Articles 1273 and 1306 (IP/N/1/RUS/O/2 at 379 and 390): These articles appear 
to provide an overly broad permission for re production for personal use. Please explain 
how these articles address the 3-step test  under TRIPS Article 13, including whether 
and how these provisions permit reproduction of only one copy for personal use, where 
that reproduction is made fr om a lawfully acquired copy. 
 Limitations and restrictions from rightholder's exclusive rights were formulated in Berne 
Convention for the Protection of Literary an d Artistic Works from 9 September 1886 (Berne 
Convention). In accordance with paragraph 2 of Article 9 of Berne Convention members have right 
to foresee in national legislation the restrictions of rights for reproduction of literary and artistic 
works on condition that in national legislation shall be indicated cases of such restrictions and it 
shall not cause harm to normal exploitation of works and infringe author's legal interests.   Provisions of paragraph 2 of Article 9 of Berne Convention reflected in Article 13 of the TRIPS 
Agreement as a quota about possible restrictions or  limitations from the exclusive copyrights and 
related rights.  
Paragraph 2 of Article 1229 of the Civil Code of  the Russian Federation correspond to above-
mentioned international contracts which determines that provided cases of free reproduction for IP/C/W/592 
 
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  personal purposes do not cause unjustified harm to the ordinary use of the results of intellectual 
activity and do not impair in an unjustified manner the lawful interests of the rightholders.  Article 1273 of the Civil Code of the Russian Federation establishes cases of free gratuitous 
reproduction of works (established provisions concern by related rights also in accordance with 
Article 1306 of the Civil Code of the Russian Federati on), if it are realized with next conditions: 
 
 individual person realize the reproduction; 
 the reproduction are realized exclusively for personal purposes; 
 a work lawfully made subject by the reproduction. 
 
Herewith the indicate Article contains list of free gratuitous reproduction. These are cases when 
even intention to use corresponding work for personal purposes do not liberate a citizen from necessity to get rightholder's permission and to pay appropriate compensation. Herewith with a 
passing of Part 4 of the Civil Code of the Russian Federation such cases were complemented by 
two new limitations:  
Video recording of an audiovisual work in case of its public performance at a please open for free 
attendance or at a place where there are a significant number of persons present not belonging to the usual circle of a family is not admitted even for personal purposes (subparagraph 5 of Article 1273 of the Civil Code of the Russian Federation); 
 
Reproduction of an audiovisual work with the ai d of professional equipment not meant for use in 
home conditions is not admitted (subparagraph 6 of Article 1273 of the Civil Code of the Russian 
Federation). Both indicated limitations allow to intensify fight with fabrication of a pirate 
production.  
Accordingly in accordance with indicated quotas individual person have right to reproduce (means 
to manufacture for satisfaction of own, family, household and other needs are not connected with realization of entrepreneurial acting) a copy of the film from TV broadcast, to reproduce work are placed in Internet in memory of computer, to make copy of audio recording (phonogram) or 
magazine article on a tape-recording or on a copier. Herewith the reproduction shall be realized 
such person personal purposes of who taken in attention.  
Provisions of Article 1273 of the Civil Code of th e Russian Federation don't spread to legal person 
who may not refer to inner needs as to basic to reproduce work free even if such actions are not related with person's commercial activity or are made to individual person's order. 
 
8. Article 1274 (1) (1 and 2) (IP/N/1/RUS/ O/2 at 380): These copyright exceptions 
(IP/N/1/RUS/O/2 at 379) appear overly broad. Both Articles 10 (1) and (2) of Berne 
Convention, which are incorporated in Article 1274 (1 and 2), require that such use be 
compatible with fair practi ce. Please explain how this fair practice limitation is 
addressed by Article 1274 (1 and 2). 
 
Provisions 1 and 2 of Article 1274 of the Civil Co de of the Russian Federation provide the use of 
works without the consent of the rightholder and wi thout the payment of compensation in case of 
citation in the original language or in translation for scientific, polemical/critical, or information purposes of works lawfully made public in an amount justified by the purpose of citation, including 
the reproduction of excerpts from newspaper and magazine articles in the form of press surveys 
and also in cases of use of works lawfully made public and excerpts from them as illustrations in publications, radio and television broadcasts, and sound and video recordings of an instructional 
nature in an amount justified by the purpose thereof. 
Necessary to note that provisions of Article 1274 of the Civil Code of the Russian Federation are 
not subjected to widened interpretation and ap ply in the relationship with paragraph 5 of 
Article 1229 of the Civil Code of the Russian Federation establishes that limitation from exclusive rights to results of intellectual activity shall be established on the condition that such limitation 
does not contradict to the ordinary use of the wo rks or object of the related right and does not IP/C/W/592 
 
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  impair the lawful interests of the rightholders. Indicated provision corresponds to Article 13 of 
TRIPS. 
9. Article 1274 (1)(6) (IP/N/1/RUS/O/2 at  380): We are concerned that this 
exception is overly broad. Woul d a non-profit entity be able to use this exception when 
the copyright owner has made the work available in the same format?  
In accordance of provision 1 of Article 1274 CC RF  right to use of work lawfully made public 
without the consent of the rightholder and with out the payment of compensation in case of 
reproduction without the extraction of profit in do t-relief type or other special means for the blind. 
No matter organizational legal form of entity who use work for purpose of reproduction for the 
blind. In present case shall be observed next cond itions: such reproduction shall be realized from 
work lawfully made public; such reproduction an d further spreading of work shall be realized 
without extraction of profit. 
 
Works representing the copy of work in any material  form in quantity which enough for satisfaction 
of requirement of public from depending of ch aracter of work are admitted be made public. 
Indicated provisions do not provide limitation of ex clusive right of works to benefit of persons with 
limited possibility including disabled persons about hearing as it provided in legislation of United 
States of America, for example. 
In some countries (e.g.in Article 37 of the Copyri ght Law of Japan from 1970) such limitation of 
exclusive right spreads by works lawfully prom ulgated (but not made public as in Russian 
legislation) that widen volume of this limitation. 
10. Article 1274(3) (IP/N/1/RUS/O/2 at 380): This exception appears to be overly 
board. Please explain how the exception limi ts taking only the portion of the work 
necessary for the purposes of the parody.  The possibility of creation of work s in the genre of a literary, musical, or other parody, or in the 
genre of caricature on the basis of work lawf ully made public without the consent of the 
rightholder and without the payment of compensation  and subsequent use of caricature or parody 
without the payment of compensation to author of original work are established in paragraph 3 of 
Article 1274 of the Civil CodeCivil Code of the Russian Federation.  
 Provisions of paragraph 3 of Article 1274 of the Ci vil CodeCivil Code of the Russian Federation on 
free creation and use in the genre of a literary, musical, or other parody, or in the genre of 
caricature on the basis of another (original) work lawfully made public without the consent of the 
author of such original work appeared in Russian  legislation as a result of borrowed approach of 
Directive 2001/29/EC of the European Parliame nt and of the Council of 22/05/2001 "On the 
harmonization of certain aspects of copyright and related rights in the information society" 
according to sub point (k) of point 3 of Article 5 of the Directive what admit may provide for exceptions or limitations in case of use for the purpose of caricature, parody or pastiche.  
 
Article 1274 of the Civil CodeCivil Code of the Russian Federation provides that parodies and 
caricatures shall be used in for Informational, Scholarly, Instructional, or Cultural Purposes, how it show name of Article. 
 
In this way author of original work have not right to prohibit to use his work in indicated method on the basic of provisions of Part 4 of the Civi l CodeCivil Code of the Ru ssian Federation, but in 
case if parody or caricature denigrate honor, dign ity or reputation of author of original work, he 
have right to protect it in order are established in Article 125 of the Civil CodeCivil Code of the Russian Federation. 
 
Should take in attention that creation of parody or caricature is not a recast of primary (original) work; it is creation of new, independent work. Pa rodies and caricatures are recognizable that is 
associated with primary (original) works because of likeness of maintenance (what is not 
copyrighted), but not because of likeness wit form (what is copyrighted). 
 IP/C/W/592 
 
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  11. Article 1280(4) (IP/N/1/RUS/O/2 at 382): This language appears to be overly 
broad. Please explain how this article addr esses the requirements of the 3-step test 
under TRIPS Article 13.  
The provisions of the Article 1280 explains in de tail rights of the owner of a copy a computer 
program or a database. These rights are limited to some cases. The main condition of the article is that the person has the obligation to own the copy lawfully. Paragraph 4 of the article 4 
implements the provision of Article 13 of the TR IPS Agreement, making an explanation that the 
application of the provisions provided by the Article must not cause unjustified harm to the normal use of a computer program or database and must not impair in an unjustified manner the lawful interests of the author or rightholder. 
 
12. Articles 1285 and 1307 (IP/N/1/RUS/O/2 at 383 and 391): We are concerned that Articles 1285 and 1307 appear to limit a ri ghtsholders ability to enter into exclusive 
licenses for a specific right and to require the rightsholders to transfer the "work in 
full." Can a rightsowner transfer one exclusiv e right, for example, e.g., the right to 
perform a work, and still maintain owners hip of the other exclusive rights, e.g., 
reproduction, synchronization? 
 Author or subject of related right have right to conclude with other person contract of alienation (transmission) of the exclusive right to the concrete result of intellectual activity that is mean 
transmission of the exclusive right in full withou t author's possibility to keep right to use such 
result in accordance with Articles 1285 and 1307  of the Civil CodeCivil Code of the Russian 
Federation. 
 
In this way in case if rightholder transferred the ex clusive right to use result of intellectual activity 
to other person, he does not keep right to use such result. 
 
Herewith the Civil CodeCivil Code  of the Russian Federation provides also another model of 
disposal of the exclusive right when rightholder have right to grant for other persons right to use result of intellectual activity by means of conclusion License Contract are provided in Articles 1286 
and 1308 of the Civil Code of the Russian Federation. Under the conditions of License Contract 
rightholder stay as holder of the exclusive right an d the licensee acquires right to use object on the 
conditions established by a contract only (e.g. the reproduction only or the public performance 
only) on the definite territo ry in definite terms.  
 13. Article 1334(2) (IP/N/1/RUS/O/2 at 399) : Any copyrighted work or object of 
related rights incorporated into a database must be subject to the rightholders' 
exclusive rights. Please explain how Article 1 334(2) accounts for the rights of authors of 
works included in a database.  
Paragraph 2 of Article 1334 stipulates that exclusive rights of the preparer of a database are 
recognized and are effective regardless of the righ ts of authors of works included in a database. 
 
14. We have numerous questions to help us understand Section 6 of Chapter 71 and 
how the rights of a publisher of a scientific, li terary or artistic work differ from the rights 
of the authors and the authors' assignees/tra nsferees of those works, as set forth in 
Chapter 70: 
 (a) Please explain the relationship betw een the publisher protected here and the 
author/assignees protected in chapter 70.  Specifically, how does this section 
relate to chapter 70, which gives these rights to the author and her 
assignees? Who has the rights to the work, the author/assignees under chapter 70, or the publisher under Chapter 71? 
 
(b) Article 1337(1) (IP/N/1/RUS/O/2 at 400) appears to take works out of the 
public domain and give the publisher exclusive rights to that work. What 
works can be removed from the public domain? 
 (c) Article 1340 (IP/N/1/RUS/O/2 at 401) appears to override the copyright 
term provided Article 1281 and override any contract or agreement that an 
author may have entered with a publisher. Please explain. IP/C/W/592 
 
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Intellectual Rights to works of scholarship, literature, or art first made public after their passage into the public domain are rights neighboring on copyright (neighboring rights) according to Article 1303 of the Civil Code of the Russian Federation. 
 
Section 6 of Chapter 71 of the Civil Code of the Russian Federation dedicated to publisher's right to works of Scholarship, Literature and Art. 
 
According to Article 1337 CC RF publisher is the citizen who lawfully made public or organized the making public of a work of scholarship, literature,  or art previously not made public and that has 
gone into the public domain (Article 1282 CC RF) or that is in the public domain by virtue of the 
fact that it is not protected by copyright. 
 
Author or other person with author's consent have the right to make the work public according to 
Article 1268 of the Civil Code of the Russian Federati on. In this case if author during the life did 
not made public his work himself or not gave consent to do such actions to other person (also in case if author did not lived any prohibition during his life) than such work may be made public by 
author's successor during the period of validity of exclusive right to work. 
 
Upon the expiration of the time period of effect iveness of the exclusive right, a work including 
previously unpublished, shall enter the public domain and may be used freely by any person 
without any consent or permission and without payment of author's compensation in accordance 
with Article 1282 of the Civil Code of the Russian Federation.  
 
For purpose of making public of previously unpubli shed works Division 6 of Chapter 71 of the Civil 
Code of the Russian Federation provides other pe rsons possibility to make public of work after 
termination of guarding of exclusive rights in case of absence author's written prohibition such 
work. 
 
I n  t h i s  w a y  p u b l i s h e r  i s  n o t  a u t h o r  o f  w o r k  o r  s u c c e s s o r ,  h e  i s  p e r s o n  w h o  m a d e  p u b l i c  w o r k  previously unpublished and is entered the public domain.  
 
Publisher has publisher's exclusive right to work ma de public by him and right to indicate his name 
on exemplar of work made public and in other cases of use (including translation or other recast of 
work). Publisher's exclusive right to work coincides with habitual copyright to use work in content, 
only with taking of right to translate, recast an d realize an architectural, designer, town-planning 
landscape project. In this way publisher of work may not control of use of work in translated or 
reprocessed form.  
 Outside publisher's sphere of control is spreading of original or exemplars of work are imposed in civil use (principle of depletion of rights) lawfully. 
 
Publisher's right in the Civil Code of the Russian Federation is right that not make damage to author's interests and to his successor. Publisher's right is made to protect the interests of 
investigator, allow to reward them for long or pe rennial search and further to open new creative 
results.  
Need to mark that protection of right of persons who make public previously unpublished works 
and are entered the public domain are provided in provisions of Article 4 of Directive of European 
Union 93/98/EEC of 29/10/1993 harmonizing the te rm of protection of copyright and certain 
related rights, in accordance with it any person who, after the expiry of copyright protection, for 
the first time lawfully publishes or lawfully communicates to the public a previously unpublished 
work, shall benefit from a protection equivalent to the economic rights of the author. 
 
The Civil Code of the Russian Federation establishes several important requirements about object 
of publisher's right:  
 It shall be work of scholarship, literature or art; 
 
 This work shall be recognized as object of copyright in accordance with acting Russian 
legislation; 
 IP/C/W/592 
 
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   It shall not be made public previously; 
 
 The work shall not be in state and municipal archives; 
 
 The work shall be made public firstly on the territory of the Russian Federation or beyond 
the boundaries but by citizen of the Russian Federation. 
 
Replacement of terms in comparison with Article 1281 of the Civil Code of the Russian Federation 
in Article 1240 indicated do not happen.  Introduction in Russian legislation of publisher's rights are stipulate for necessity of cultural 
development of society in relations with promulgati on of work of Scholarship, Literature and art 
previously unpublished that is mean unknown t ill this event and for encouragement of persons 
who made these work are known for society (made them promulgation – public). 
 
The work which have expired term of exclusive righ t enters to the public domain that is mean it 
may be used freely by any person without any consent or permission and without payment of 
author's compensation. But there is question abou t possibility to use unknown work is entered to 
the public domain.  In case of made public work is entered to the pu blic domain on the condition that such publishing 
do not contradict the author's will, publisher have right to use such work (the publisher's exclusive 
right) effective for 25 years counting from January 1 of the year following the year of publishing, 
namely to use the work with methods are prov ided in subpoints 1-8 and 11 of point 2 of 
Article 1270 of the Civil Code of the Russian Federation. 
 15. We remain concerned that Russian law might not adequately protect foreign works 
and related rights, including pre-existing wo rks and related rights. We have noted that 
there are numerous provisions dealing with this issue (Articles 1231, 1256, 1304, 1318, 1321, 1324, 1328 and 1341), but were unable to  confirm the required coverage. Some of 
our concern may relate to translations issu es or to the accuracy of IP/N/RUS/0/2.  
 
Article 1256 of the Civil Code of the Russian Federati on defines realization of the exclusive right to 
Works of Scholarship, Literature, and Art on the territory of the Russian Federation because of 
publishing on the territory of the Russian Federation  or because of principle of author's citizenship 
of such works (or them successor).  
Russian legislator proceeds from place of publishing of work (or his existence in objective form in 
case of absence of publishing) to give the exclus ive right to work on the territory of the Russian 
Federation. 
 
In case if work made public on the territory of the Russian Federation than the exclusive right to 
such work shall be recognized for authors (or their legal successors) regardless of their citizenship.  
It concerns also cases when work not made public existing in some objective form on the territory 
of the Russian Federation.  
A work also shall be considered first made public by publication in the Russian Federation if, in the 
course of thirty days after the date of first pub lication, it was published on the territory of the 
Russian Federation.  
In case if work made public beyond the boundarie s of the territory of the Russian Federation, need 
to take by attention author's citizenship (or his legal successor). If work made public beyond the boundaries of the territory of the Russian Federati on author of work (his legal successor) being 
citizen of the Russian Federation, Russian legislat or keeps the exclusive right to work by such 
persons.  
It concerns also cases when work not made public exists in some objective form beyond the 
boundaries of the territory of the Russian Federation at author or his legal successor who are citizens of the Russian Federation.  IP/C/W/592 
 
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  In other cases the exclusive right to works made pu blic or existing in some objective form beyond 
the boundaries of the Russian Federation and shall be recognized, in accordance with international treaties of the Russian Federation, for authors (or their legal successors) who are citizens of other states. Herewith the time period of the exclusive right established in the country of origin of the 
work may not exceeds the time period of the exclusive right to these works in the Russian 
Federation. In case if the time period of the exclus ive right in the country of origin of the work has 
expired and the exclusive right have entered the pu blic domain than this work enters the public 
domain in the Russian Federation too. Moreover primary rightholder is determined in accordance 
with a law of state where was happened a fact which is basis for acquisition of the copyright.  According to point 3 of Article 1304 of the Civil Code  of the Russian Federation the granting on the 
territory of the Russian Federation of protection for objects of neighboring rights in accordance 
with the international treaties of the Russian Federation shall be conducted in case if in the country of origin of the work it have not entered the public domain and have not entered the public domain 
on the territory of the Russian Federation. 
 In other articles of the Civil Code of the Russi an Federation Russian legislator proceeds from 
principle of the citizenship/place of location or implementation (for the performance are not fixed 
in phonograms) / promulgation (phonograms) on the territory of the Russian Federation aside 
from the conditions of the international treaties of the Russian Federation for granting legal protection to some object of neighboring rights. 
 
16. Please advise which specific Article requires coverage for: 
 
(a) Authors who are nationals of a Bern e country for published and unpublished 
works 
 
The rights of the authors, who is a citizen of the Russian Federation – member of Berne 
Convention, are protected in accordance with subpo int 2 of point 1 of Article 1256 of the Civil Code 
of the Russian Federation. 
 
The rights of the authors who are citizens of other states works of whom made public beyond the 
boundaries of the territory of the Russian Federati on – member of Berne Convention, are protected 
on the territory of the Russian Federation on basi s of subpoint 3 of point 1 of Article 1256 of the 
Civil Code of the Russian Federation (international-l egal criterion) in accordance with provisions of 
Berne Convention.  
N e e d  t o  m a r k  t h a t  n a t i o n a l  r e g i m e  ( a r e  p r o v i d ed in Article 3 of Berne Convention) give the 
possibility to any citizen's work of any state who is member of Berne Convention to use protection 
in all countries of Berne Union including the Russian Federation.  
(b) Authors who are not nationals of a Be rne country for works first published, 
or published within 30 days, in a Berne country 
 
The rights of a foreign author who made public his works on the territory of the Russian Federation 
– member of Berne Convention are protected in  accordance with subpoint 1 of point 1 and 
subpoint 2 of Article 1256 of the Civil Code of th e Russian Federation (criterion of the place of 
promulgation of work). 
 The rights of authors who are  citizens of other states who made public works beyond the boundaries of the territory of the Russian Federation but in country – member of Berne 
Convention, are protected on the territory of the Ru ssian Federation on basis of subpoint 3 of point 
1 of Article 1256 of the Civil Code of the Russian  Federation (international-legal criterion) in 
accordance with provisions of Berne Convention. 
 IP/C/W/592 
 
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  (c) Authors who are not nationals of a Be rne country but who have their habitual 
residence in a Berne country 
 
The rights of authors who are not nationals of a Be rne country are protected on the territory of the 
Russian Federation on basis of subpoint 3 of point 1 of Article 1256 of the Civil Code of the Russian 
Federation (international-legal criterion) in accordance with international treaties of the Russian Federation. 
 
However in indicated cases necessary to pass that in cases if foreign author made public his work on the territory of the Russian Federation (or his not made public on the territory of the Russian 
Federation work exists in some objective form) he have legal protection in accordance with point 1 
of Article 1256 of the Civil Code of the Russian Federation. 
 The Russian Federation participated in following international treaties about copyright: the 
Universal Copyright Convention on 6th September 1952 (revised in Paris on 24
th July 1971), The 
Agreement about collaboration in sphere of copyri ght and related right are concluded in Moscow at 
24th September 1993, Berne Convention for the Protection of Literary and Artistic Works (in 
editing Parisian Statement at 24th July 1971) - since 13th March 1995, The World Intellectual 
Property Organization (WIPO) Copyright Treaty on 20th December 1996 – since 2009.  Moreover the Russian Federation as successor of the USSR is connected two-way international 
treaties about mutual protection of copyrights with some states, e.g. with Sweden (15th April 
1986), with Armenia concluded Agreement abou t mutual protection of copyrights at 
25
th June 1993. 
 
(d) Authors of an audiovisual works the maker of which has its headquarters or 
habitual residence in a Berne country 
 
(e) Authors of works of architecture cons tructed in a Berne country or artistic 
work incorporated in a building or structure located in a Berne country 
 
Answer to two previous questions: The rights th e indicated category of authors are provided on 
the territory of the Russian Federation analogically  as for cases are viewed above that is mean on 
basis of point 1 of Article 1256 of the Civil Code of the Russian Federation. 
 
Herewith need to keep in mind that in point 3 of Article 1256 of the Civil Code of the Russian 
Federation are shown a peculiarities of acting of international-legal criterion on the territory of the 
Russian Federation. In indicated quota are shown that author of work or another primary 
rightholder is determined by the law of state on what territory happened fact of acquisition of copyrights at granting the protection to work on the territory of the Russian Federation in 
accordance with international treaties of the Russian Federation. These quota are provided for 
legislation about copyright of states where auth or or primary rightholder is a legal person. 
 
17. Please confirm that Russian Law provid es the owners of musical compositions a 
public performance right when that musi c is contained in audiovisual works and 
exhibited in theaters. What provisio n of the law provides this right? 
 
According to point 5 of Article 1263 of the Civil Co de of the Russian Federation the composer of 
created work keeps the exclusive right to use his work separately from creating film in which composition are concluded his musical work on condition that such author did not enter (on basis of Articles 1234 and 1285 of the Civil Code of the Russian Federation) the exclusive right to 
musical work full to person who organized the crea tion of film (the producer – Article 1240 of the 
Civil Code of the Russian Federation).  IP/C/W/592 
 
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  18. What is the term of protection fo r audiovisual works? The authors of the 
audiovisual work are defined in Article 1263. Is  the term of protection 70 years from the 
death of the last surviving author under Ar ticle 1281 (1)? If not, what Article governs 
the term of audiovisual works? 
 
The term of protection for audiovisual work is th e term when the audiovisual work has protection 
in the territory of the Russian Federation. The term  of protection for audiovisual work is provided 
in Article 1281 of the Civil Code of the Russian Fede ration according to what the exclusive right to 
work created in coauthorship shall be effective for the whole life of the author outliving the other coauthors plus seventy years, counting from January 1 of the year following the year of his death.  
Moreover the Civil Code of the Russian Soviet Federative Socialist Republic from 1964 what was 
acting before Law of the Russian Federation at 9th July 1993 № 5351-I "About copyright and 
related rights" provided legal person's copyrigh t (herewith according to Article 498 of the Civil 
Code of the Russian Soviet Federative Socialist Republic from 1964 rights are arisen among legal 
persons primarily acted in perpetuity; in case of  reorganization of such legal person copyright 
entered by legal successor, and in case of liquid ation – by state). The copyright of legal persons 
what has raised before 3rd August 1993 stops after 70 years since the date of lawfully made public 
w o r k ,  i f  w o r k  u n p u b l i s h e d  t h a n  s i n c e  d a y  o f  c r e at i o n  o f  w o r k  w h a t  p r o v i d e d  i n  A r t i c l e  6  o f  t h e  Federal Law of the Russian Federation from 18th December 2006 No. 231-FL "About introduction by acting Fourth Part of the Civi l Code of the Russian Federation". 
 
19. Art. 1252.1.4 (IP/N/1/RUS/O/2 at 370). Please clarify what is meant by "non-
bona fide acquirer."  
 
In case of breach of the exclusive right to the results of intellectual activity and to means of 
individualization rightholder have right in particul ar by the making of demand about the taking of 
the physical carrier are used or are destined for fulfillment of breach against the producer, 
importer, keepers, carrier, seller, other distributor, or bad faith recipient.   
The bad faith recipient is a person who has acquir ed (with or without compensation) the physical 
carrier for fulfillment of breach from person who had not the right to alienate it about what acquirer knew or shall be known. Such definition  of the bad faith recipient follows from Article 302 
of the Civil Code of the Russian Federation. 
 
20. Art. 1252.5. Provision allows equipment and materials used for infringing to be withdrawn from circulation and destroyed at  infringers expense, "except when being 
subject to be converted into the revenue of the Russian Federation." In light of 
Article 46 of the TRIPS Agreement, please expl ain the scope of this exception, and when 
it applies. 
 
According to Article 46 of the TRIPS Agreement the judicial authorities shall have the authority to order that goods that they have found to be infringing be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to avoid any harm caused to 
the right holder, or, unless this would be contrary to existing constitutional requirements, 
destroyed. The judicial authorities shall also have the authority to order that materials and implements the predominant use of which has been  in the creation of the infringing goods be, 
without compensation of any sort, disposed of outside the channels of commerce in such a manner 
as to minimize the risks of further infringements.  
Legislation of the Russian Federation provides quot as govern that counterfeit copies of works and 
turn materials and implements the predominant us e of which has been in the creation of the 
infringing of the intellectual rights shall be disposed of outside from commerce turn (point 5 of Article 1252 of the Civil Code of the Russian Federation). 
 
Indicated actions may be realized by decision of court. Herewith legislation of the Russian 
Federation may comprise quotas allowing to exact to income of state materials and implements 
the predominant use of which has been in the creation  of the infringing of the intellectual rights. In 
particular in cases when introduction in commerce turn such goods is necessary for public interests, rightholder shall have the right to demand removal at the expense of the infringer of 
counterfeit goods, labels, and packaging of the goods on which an unlawfully used trademark or 
indication similar to it to the point of confusio n according to point 2 of Article 1515 of the Civil IP/C/W/592 
 
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  Code of the Russian Federation. In other words, in cases when goods on which counterfeit 
trademark are necessary for state in societal interests (e.g. on social need to children's community etc.) than counterfeit trademark are deleted and subject by recovery to income of the Russian 
Federation. 
 
21. Art. 1302 (and Art. 1312) (IP/N/1/RUS/ O/2 at 389) The title of this article 
"Security for a claim in a copyright violation case," does not seem to match its contents 
which forbids "using [counterfeit copies of a work] in civil-law transactions." Please 
clarify, because as written it appears that the scope of the article is much larger than its 
title.  
Article 1302 of the Civil Code of the Russian Federation establishes the right of court to forbid a 
defendant or other person with respect to whom there are sufficient bases to suppose that he is an infringer of copyright rights to take specific with the purpose of introducing into civil commerce 
copies of a work with respect to which it is supposed that they are counterfeit.  
 
The court also may impose seizure on all copies of a work with respect to which it is suspected 
that they are counterfeit and also on materials and equipment used or meant for their preparation 
or reproduction. 
 
In other words Article 1302 of the Civil Code of the Russian Federation corresponds to her name 
(Security for a Claim in Cases on the Infringement of Copyright) and provides the possibility of 
application of security remedy with respect to co ntroversial copies of works and also corresponding 
materials and implements. 
 
22. Paragraph 4 of Article 1349 (IP/N/1/RU S/O/2). The Objects of Patent Rights 
 
4. The following shall not be objects of patent rights: 
1) human cloning techniques; 2) the techniques for modifying the ge netic integrity of human embryo cells; 
3) the uses of human embryos for industrial and commercial purposes; 
4) other developments inconsistent with the public interest and humane and moral 
principles.  
Does "inconsistent with the public inte rest and humane and moral principles" in 
paragraph (4) have the same meaning as "protect[ion of] ordre public  or morality" as 
used in Article 27(2) of the TRIPS Agreement? 
 
23. Paragraph 6 of Article 1349, provides:  
6. No legal protection shall be prov ided to the following as inventions: 
1) varieties of plants, breeds of animals and the biological methods for producing 
them, except for microbiological methods an d products produced by such methods; 
2) integrated circuit layout-designs. 
 
(a) Article 27(3)(b) of the TRIPS Agreement requires Members to provide for sui 
generis protection for plants, if patent s cannot be granted for varieties of 
plants. How does the Russian Federati on provide protection for plants?  
Decree No. 735 of 14/09/2009, the Russian Federation Government Approving the Regulation on Patent Fees  and Other Types of Fees Related to 
Plant Variety Patents and State Regi stration of Agreements Assigning 
Exclusive Rights on Plant Variety, is no ted, but has this decree been notified 
to the WTO? 
 
(b) How does the Russian Federation prov ide protection for integrated circuit 
designs? Order No. 323 of October 29, 2008 of the Ministry of Education and 
Science of Russia (Approving the Administrative Regulations to Govern the 
Performance by the Federal Service fo r Intellectual Property, Patents and 
Trademarks of its Functions to Process and Examine Applications for the Registration of Topographies of Integrated Circuits as well as to Grant of Certificates of State Registration of To pographies of Integrated Circuits in IP/C/W/592 
 
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  accordance with Established Procedure) is noted, has this order been notified 
to the WTO? 
 Answers for three previous questions. 
 
Paragraph 4 of Article 1349 CC RF as a whole establishes exclusions from patent rights of solutions contradicting societal interests and principles of humanity and morality, which are common 
exclusions from patent rights. Subparagraphs 1-3 of the abovementioned paragraph emphasize 
solutions recognized as subject to exclusion from patent rights. Similar approach is used on the European Union level: Additional Protocol on the Prohibition of Cloning Human Beings of 1998 to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to 
the Application of Biology and Medicine of 1997, Directive 98/44/EC. 
 It should be noted that provisions of 4quarter Article of the Paris Convention for the Protection of 
Industrial Property, according to which "The grant of a patent shall not be refused and a patent 
shall not be invalidated on the ground that the sale of the patented product or of a product obtained by means of a patented process is subject to restrictions or limitations resulting from the 
domestic law". Thus limitations or reductions of sales of a product in which the invention as well as 
utility model or industrial design applied for may be embodied, cannot serve as a basis for the recognition of the object of patent rights applied for as contradicting societal interests, principles of humanity and morality with the exception of the cases of direct prohibition of usage (sales) on the 
territory of the Russian Federation of such partic ular product as contradicting societal interests, 
principles of humanity and morality. The list of objects in Paragraph 4 of Article 1349 CC RF includes solutions commercial usage of which shall be prevented for the sake of public order 
maintenance and morality protection, including protection of life and health of the population as 
well as preventing extensive damage to the environment.  
Seemingly provisions of Paragraph 4 of Article 1349 CC RF imply the same meaning as provisions 
of TRIPS Article 27(2).  Paragraph 6 of Article 1350 CCR F (in the ques tion Article 1349 was named mistakenly): Legal 
protection as inventions shall not be granted to: varieties of plants, breeds of animals and 
biological methods of obtaining them, with the exception of microbiological methods and products obtained through the use of such methods; the to pology of integrated circuits. Such objects are 
recognized as independent result of intellectua l activity (Paragraph 1 of Article 1225 CC RF) and 
are provided by CCRF with a separate ("special"») legal protection.  
Legal protection of varieties of plants and breeds of animals is granted by Chapter 73 CC RF as to 
achievements of breeding.  Legal protection of integrated circuit layouts is  explained in Chapter 74 CC RF. CC RF retains the 
principles of protection and use of integrated circuit layouts established in Law of Russian 
Federation № 3526-I d.d. 23.09.1992 "On legal protection of topology of integrated circuits" in 
force prior to Part 4 CC RF. The legal protection gr anted by the present Code shall extend only to 
an original integrated circuit layout created as the result of the creative activity of an author 
and/or specialists unknown to the author in the area of integrated circuit layout development on the date of its creation (Paragraph 2 of Article 1448 CC RF). 
 
According to Article 1452 CC RF the rightholder, during the time period of effectiveness of the exclusive right to the layout may at his option register the layout with the Federal agency of executive authority for intellectual property. The rules of such optional state registration of 
topology of integrated circuits are determined  by the Administrative Rules of Procedure of 
execution by the Federal agency of executive authority for intellectual property, patents and 
trademarks functions of receiving applications for state registration of topology of integrated 
circuits and of their consideration and issuance in accordance with the established procedure of a 
certificate on state registration of an integrated circuit layout, approved by Order № 323 
d.d. 29.10.2008 of the Ministry of Education and Science of the Russian Federation. 
 IP/C/W/592 
 
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  24. Article 1359 (IP/N/1/RUS/O/2). Actions Not Deemed an Infringement of the 
Exclusive Right to an Invention, Utility Model or Industrial Design  
The following are not deemed an infrin gement of the exclusive right to an 
invention, utility model or industrial design: 
2) the carrying out of scientific resear ch of a product or method in which the 
invention or utility model is used or of scie ntific research of an article in which the 
industrial design is used or the carrying out of an experiment in respect of such 
product, method or article; 
 Would experiments using protecte d inventions or designs to experiment on other things 
infringe a protected invention or design? For example, if a medical instrument is 
patented or protected as an industrial design , would use of a copy of that instrument in 
medical testing infringe the patent  or industrial design right? 
 
25. Article 1359, continues, providing:  
3) the using of the invention, utility mo del or industrial design in emergency 
circumstances (natural calamities, disaster s, accidents), with the patent holder 
being notified of this use as soon as possible and with commensurate compensation being paid henceforth to the patent holder; 
 
According to Article 31(a) of the TRIPS Agr eement, each use without authorization of 
the rights holder shall be considered on its individual merits. Furthermore, Article 31(b) 
of the TRIPS Agreement clarifies that the re quirement to make reasonable efforts to 
obtain permission may be waived by a Memb er if certain conditions apply. How does 
Article  1359 provide for a decision on a case by case basis? 
 
26. Article 1359, continues, providing in paragraph 4:  
4) which provides the use of the inventio n, utility model or industrial design for 
meeting personal, family, household or other needs other than entrepreneurial 
activity, unless profit-makin g or making earnings is the purpose of the use; 
 
This provision may conflict with a normal expl oitation of the patent and encroach on the 
legitimate interests of the patent owner, wh ere the invention or design is intended for 
household use. Please explain how th e provision addresses these concerns. 
 
Answers for three previous questions.  Paragraph 2 of Article 1359 CC RF: the conduct of scientific study of a product or method in which 
the invention or utility model is utilized, or scientific study of a manufacture in which an industrial 
design is utilized or the conduct of an experiment on such a product, method, or manufacture; thus third parties without infringing the exclusive right can only study a patented object, but 
cannot utilize it as a mean o conducting a research. 
 Not considered as infringing the exclusive right: the conduct of scientific study of a product or 
method in which the invention or utility model is utilized, or scientific study of a manufacture in 
which an industrial design is utilized or the cond uct of an experiment on such a product, method, 
o r  m a n u f a c t u r e .  T h i s  r u l e  a l l o w s  a n y  p e r s o n  t o  m a k e  s u r e  o f  t h e  a c t u a l  p r o p e r t i e s  a n d  characteristics declared in the description to the patent or in the rightholder's advertisement prior 
to contacting the rightholder and only after doin g so to make a decision on reasonability of 
entering negotiations with the rightholder on purchasing the right of use of the invention. 
 
This only refers to experiment or scientific resear ch conducted on the patented product, method or 
manufacture themselves but not to experiment or  scientific research conducted with their help. 
Thus the abovementioned rule does not imply co mmercialization of a patent-protected invention 
during the conduction of scientific experiment on an object containing the invention by third 
parties.  Paragraph 3 of Article 1359 CC RF: Not considered as infringing the exclusive right: the utilization 
of an invention, utility model, or industrial design in extraordinary circumstances (natural IP/C/W/592 
 
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  disasters, catastrophes, accidents) with notification of this use to the patent holder as soon as 
possible and with subsequent payment to him of proportionate compensation. The legislator does 
not limit scope of persons authorized to utilize patented objects without rightholder's pemit should the abovementioned circumstances arise, however such persons shall notify the rightholder about 
the utilization as soon as possible with subsequent payment to him of proportionate compensation. 
 This exclusion from the exclusive rights of a patent holder is attributed to the importance of an 
urgent use of an invention in public interest in case of extraordinary circumstances which should 
the necessity of preventing or recovering the consequences of natural disasters, catastrophes and other accidents. Also this exclusion from the exclusive rights concerns only extraordinary 
circumstances and does not extend to other accidents and disasters. Extraordinary circumstances 
are declared by public authorities of a particular country or by international organizations providing 
aid in such circumstances.   
H o w e v e r  t h e  p a t e n t  h o l d e r  s h a l l  b e  n o t i f i e d  o f  s u c h  u s e  a s  s o o n  a s  p o s s i b l e  w i t h  s u b s e q u e n t  
payment of proportionate compensation to him. That regulation corresponds with Article 31 of the TRIPS Agreement. Russian jurisdiction lacks precedents on that matter at present. Also the 
legislator does not determine notification proced ure of the patent holder of such use of an 
invention, utility model, or industrial design an d does not declare neither the way of paying the 
compensation nor its time limitations.  
Paragraph 4 of Article 1359 CC RF: Not considered as infringing the exclusive right: the utilization 
of an invention, utility model, or industrial design for the satisfaction of personal, family, home, or other needs not connected with entrepreneurial activity if the purpose of such utilization is not the 
receipt of profit or income. As defined in Paragr aph 1 of Article 2 CC RF business activity shall be 
an independent activity, performed at one's own ri sk, aimed at systematically deriving a profit 
from the use of the property, the sale of commodities, the performance of work or the rendering of 
services by the persons, registered in this ca pacity in conformity with the law-established 
procedure. Also a citizen, engaged in business ac tivities without forming a legal entity with the 
violation of the requirements of Item 1 of the pres ent Article, shall have no right to refer, with 
respect to the deals he has thus effected, to the fact that he is not a businessman. That means 
that the primary criteria of an activity not recognized as infringing exclusive rights is it being non 
profit-seeking.  
Thus the legislator protects the interests of those members of society who use the patented object 
without gains.  
For example, a person can legally assemble and use a fishing tent the patent on which is held by 
another person, moreover the person's family and friends can also use the tent. However, selling 
such tent, even secondhand, with profit shall be recognized as infringement of the exclusive right 
of the patent holder. 
 
When applying Article 1359 CC RF one should bear in mind that according to Paragraph 5 of Article 1229 CC RF the limitations on exclusive rights to results of intellectual activity are established on 
the condition that they do not cause unjustified harm to the ordinary use of the results of 
intellectual activity or means of individualization and do not impair in an unjustified manner the lawful interests of the rightholders. 
 
27. Article 1360 (IP/N/1/RUS/ O/2). Using an Invention, Utility Model or Industrial 
Design in the Interests of National Security  
In the interests of national security the Gove rnment of the Russian Fe deration is entitled 
to permit the use of an invention, utility mo del or industrial design without the consent 
of the patent holder, with the patent holder being notified as soon as possible and with a 
commensurate compensation being paid to the patent holder. 
 According to Article 31 of the TRIPs Agreemen t, each use without authorization of the 
rights holder shall be considered on its indi vidual merits. Please explain how this Article 
addresses consideration on the individual me rits.  Also, the term "National Security" 
appears overbroad and not well defined.  Was "national emergency or other 
circumstances of extreme urgency" intended? 
 IP/C/W/592 
 
- 17 - 
 
  Article 1360 of the Civil Code of the Russian Fede ration regulates relationships about use of an 
Invention, Utility Model, or Industrial Design in th e Interests of National Security. According to this 
Article the Interests of National Security are interests of defense and security. In conformity with Item 1 of Article 1 of the Federal Law №61-FZ of 31st May 1996 "About Defense" the Defense is 
system of politic, economic, military, social, legal and other measures for preparation by armed 
protection and armed protection of the Russian Federation, integrality and untouchability of the 
territory. In conformity with Item 6 of the Strategy  of National Security of the Russian Federation 
until 2020 ratified by Decree of President of the Russian Federation №537 of 12 May 2009 a notion 
"National Security" is condition of security of personality, society and state from home and foreign threats what give to secure constitutional the rights, freedoms, worthy quality and standard of living of citizens, sovereignty, territorial in tegrality and stable development of the Russian 
Federation, the defense and security of the state. In conformity with Article 1 of the Federal Law 
№390-FZ of 28
th 2010 "About Security" the main subjects of guarantee of security are federal 
state authorities, state authorities of subjects of  the Russian Federation, municipal authorities in 
range of security and the Security Council of the Russian Federation also. 
 According to Article 1360 of the Civil Code of the Russian Federation in the interests of national 
security the Government of the Russian Federation  as an executive authority assignee to ensure 
the security is entitled to permit the use of an invention, utility model or industrial design. That is mean the legislator has endowed the Government of the Russian Federation the right to give to other persons right to use patented Invention, Utility Model or Industrial Design in certain 
conditions and without the consent of the patent holder. Herewith the legislator has established 
that the patent holder may be notified about use of his invention, utility model or industrial design as soon as possible and with payment of proporti onate compensation to him. But Article 1360 of 
the Civil Code of the Russian Federation do not defi ne an order and term of notification by patent 
holder about use of invention, utility model or in dustrial design and does not provide a method of 
calculation of compensation. 
 
28. Article 1362 (IP/N/1/RUS/0/2 at 408): Th e Compulsory License for an Invention, 
Utility Model or Industrial Design  
1 .  I f  a n  i n v e n t i o n  o r  i n d u s t r i a l  d e s i g n  i s  n o t  u s e d  o r  i s  i n s u f f i c i e n t l y  u s e d  b y  t h e  
patent holder within four years after the issuance of the patent, and a utility model 
within three years… or industrial design -- if the patent holder refuses to conclude a 
licence contract with this person on te rms meeting the prevailing practices -- is 
entitled to file a claim with the court …..   
In paragraph 1, does "terms  meeting the prevailing practi ces" have the same meaning 
as "reasonable commercial terms" as used in Article 31(b) of the TRIPS Agreement? 
 
29. The article also provides "A compulsor y simple (non-exclusive) licence may be 
terminated in a judicial proc edure at a claim of the patent  holder, if the circumstances 
due to which the licence has been issued are no longer existing and it is unlikely that 
they are going to appear again. In this case the court shall establish a term and 
procedure for termination of the compulsory simple (non-exclusive) licence and of the 
rights that have come into being due to the receipt of the licence." 
 
Article 31(c) of the TRIPS Agreement states that the scope and duration of such use 
shall be limited to the purpose for which it was authorized. This article appears to require the patent holder to sue for termin ation of the compulsive license. Is this 
correct? 
 
30. Furthermore, the article provides "If the patent holder having an exclusive right to 
such dependent invention manages to prov e that it is an important technical 
achievement and that is has significant ec onomic advantages over the invention or 
utility model of the holder of the first patent, the court shall take a decision on granting 
a compulsory simple (non-exclusive) licence thereto. The right of using the invention 
protected by the first patent obtained under such licence shall not be assigned to other 
persons, except for the case of a lienation of the second patent." 
 IP/C/W/592 
 
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  Article 31(l)(ii) of the TRIPS Agreement provid es conditions for when a patent owner is 
entitled to a cross license. Please explain how this situation is addressed in the Russian 
system.  
31. Article 1362, compulsory licenses. This ar ticle makes the provisions of compulsory 
licenses equally applicable to industrial de signs as patents, and results in compulsory 
licensing (forfeiture) of rights if the patented  invention or design is not used or worked 
within a set time. Paris Convention Article 5(B)  provides that the protection of industrial 
designs, "shall not, under any circumstances be subject to any forfeiture, either by 
reason of failure to work or by reason of importation of articles corresponding to those 
which are protected." Article 2(1) of the TRIPS Agreement requires compliance with 
Article 5, among other parts,  of the Paris Convention. Pl ease explain how Article 1362 
addresses the requirements of Arti cle 5(B) of the Paris Convention. 
 
32. Finally, as to Article 1362, Articles 31 (i) and (j)of the TRIPS Agreement requires 
that judicial review by a distinct higher authority be available.  How does the Russian 
Federation provide for such judicial review? 
 
Answers for five previous questions.  Article 1362 of the Civil Code of the Russian Federation is devoted to detailed regulation of 
questions of the compulsory  licensing. Quotas regulating the Compulsory  licensing are founded on 
the provisions of the Paris Convention for the Protec tion of Industrial Property (Article 5 item A(2)) 
and the TRIPS Agreement (Articles 31 and 40). 
 
Semantic maintenance of the notion "conditions corresponding to established practice" is used in Article 1362 of the Civil Code of the Russian Federation and the notion "reasonable 
commercial conditions" is used in Article 31(b) of the TRIPS Agreement are same. 
 In case of insufficient using of invention or industrial design during four years since the date of granting of the patent or utility model – during th ree years since the date of granting of the patent 
and a patent holder's refusal to conclude license contract with an interested person on conditions 
corresponding to established practice, this person shall have the right to go to court with a suit against the patent holder for the granting of a compulsory simple licence (non-exclusive license) 
for the use of an invention, utility model, or industrial design. In the demand in the lawsuit, the 
interested person must indicate the proposed th e terms of a license, including the scope and the 
conditions of use of the patented object, the amount, procedure, and times of payments. The court 
makes decision about the granting of the compulso ry license if the patent holder does not show 
that nonuse or insufficient use of the patented object is based on valid causes. All cases of using of the patented object are defined in the court decision. The rights which are is provided in conformity with the compulsory license ma y not be transferred to third persons. 
 
If the circumstances that were the basis for the granting of simple (nonexclusive) license cease to exist and their reappearance is unlikely, then acti ng of the Compulsory license may be terminated 
by judicial procedure on a suit by the patent hold er. This quota corresponds to Article 31(c) of the 
TRIPS Agreement. A duty of proof of absence a/n circumstance is encharged to patent holder. In this case the term and procedure of termination of  distributed license and termination of right is 
arised with getting of this license are established by court. 
 Article 31(I)(ii) of the TRIPS Agreement foresees a "cross license". Analogous quota is contained in item 2 of Article 1362 of the Civil Code of the Ru ssian Federation. Present item establishes rules 
for situation when the using of one patented Invention is connected with the using of other 
patented Invention or patented Utility Model. If other person have the patent to this other Invention or Utility Model than using of first patented Invention needs to get a permission from 
other patent holder. In case of refusal of other pate nt holder to get license, first patent holder shall 
have the right to go to court with a suit for the granting of the Compulsory license. Observation of 
conditions "an important technical achievement" and "a significant economic advantage" is 
directed to protection of hindering patent holder's interests and this quota provides some balance 
of interests of both patent holders and the society in full so long as the society interested in creation of an important technical achievement, pa tenting them and use. In case of the granting 
the Compulsory license by court decision second patent holder acquires the right to get from 
second patent holder analogous license to such Invention for procuring of use which is provided IP/C/W/592 
 
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  the Compulsory license. Necessary to mark that positions in this item do not provide a possibility 
to demand a submitting the Compulsory license for procuring of possibility to use patented Utility Model. Such limitation stipulated for the fact that the patent to Utility Model is distributed without a verification of her patentability. 
 
The provisions of Article 1362 of the Civil Code of the Russian Federation about the Compulsory 
licensing in case of insufficient use the Industrial Design during forth years do not contradict to 
Article 5(B) of the Paris Convention for the Prot e c t i o n  o f  I n d u s t r i a l  P r o p e r t y  s o  l o n g  a s  t h e  
submitting of the Compulsory license to patented Industrial Design does not mean a cessation of his legal protection.  
A reconsideration of court decisions is realized in conformity with the Civil Procedural code of the 
Russian Federation and the Arbitration Procedural code of the Russian Federation.  
The procedure of reconsideration of court decisions about the Compulsory licensing on basis of 
Article 1362 of the Civil Code of the Russian Federa tion is provided in procedural legislation. 
 
33. Article 1508: (IP/N/1/RUS/0/2 at 463): Article 1508 (1) states that a trademark 
may be considered generally-r ecognized in the Russian Federation as the result of 
intensive use. Can the GOR clarify whether "i ntensive use" includes knowledge in the 
Russian Federation which has been obtained  as a result of the promotion of the 
trademark?  
 The main conditions for an acknowledgement of designation as generally known in the Russian 
Federation trademark are his intensive use, wide known of this designation in the Russian 
Federation among the corresponding consumers, an d wide known with respect to goods of person 
who think his trademark is generally known (A rticle 1508 of the Civil Code of the Russian 
Federation).  
 The intensity of use is estimated proceeding from concrete situation, kind of trademark, goods and 
amount of advertising campaign, speed of mastering of market and other factors. 
 
For confirmation of the intensive use of trademark on the territory of the Russian Federation may be shown in particular: date of starting of use th e trademark, the list of populated locality where 
realization of goods are marked with trademark is made, the amount of realization these goods, 
methods of use the trademark, average annual amount of consumers of good, position of manufacturer on the market in certain economic sector etc.; countries where trademark have wide 
known, the expenditure to advertisement of tradem ark (e.g. annual financial reports), cost (value) 
of trademark in conformity with data in annual fi nancial reports, the results of interrogation of 
consumers in question of generally-known of tr ademark is produced by specialized independent 
organization. 
 
34. Article 1515 Second sentence (IP/N/1/ RUS/O/2 at 466): "If the placing of the 
goods in transactions is required for the pub lic interest the right holder is entitled to 
demand removal at the infringer's expense of the illegally used trademark...." The 
provision appears to allow for a broad exce ption. Article 46 of the TRIPS Agreement 
allows for the removal of infringing mark s only in "exceptional circumstances." 
(Article 46 of the TRIPs Agreement: "In re gard to counterfeit trademark goods, the 
simple removal of the trademar k unlawfully affixed shall not be  sufficient, other than in 
exceptional cases, to permit release of th e goods into the channels of commerce.") 
Please explain how proposed Article 1515, whic h allows for removal of infringing marks 
for claims of "public interest," addre sses Article 46 of the TRIPS Agreement. 
 
Article 46 "Other Remedies" of the TRIPS Agreem ent provides that the simple removal of the 
trademark unlawfully affixed shall not be sufficient,  other than in exceptional cases, to permit 
release of the goods into the channels of commerce. 
  
Part 2 of Article 1515 of the Civil Code of the Ru ssian Federation corresponds to shown provision 
of the TRIPS. In conformity with this Article two main methods of protection to trademark are provide:  IP/C/W/592 
 
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   The rightholder's demand of removal from commerce and destruction of counterfeit 
goods on which an unlawfully used indication; 
 The payment of compensation instead of indemnity of damage. 
 
The possibility of presentation of demand about removal of indication is exception from the general 
rule and it may be shown instead of demand about removal from commerce and destruction of counterfeit goods, and in case only when "the introduction of such goods into commerce is 
necessary in societal interests". Herewith there is talk about valid social significancy of the 
introduction of certain kind of good in civil commerce and about possible negative consequence of destruction for customers what will have make a breach of social interest (e.g. foodstuffs). 
 
Other laws (which seem not to have yet been notified) 
 
35. Article 18.6 of the Law on Circulation of  Medicines (as last amended on June 25, 
2012) states: "The results of the nonclinical trials of medicinal products and clinical 
trials of medicinal products submitted by the applicant for state registration of the 
medicinal products shall not be obtained, disclosed, used for commercial purposes and 
for purposes of state registration without a pplicant's permission within six years from 
the date of the state registration of the me dicinal product. Violation of the prohibition 
specified by this Clause shall entail the resp onsibility in accordance with the legislation 
of the Russian Federation. The circulation of medicines in the Russian Federation 
registered with violation of this  Clause shall be prohibited." 
 
How this provision is implemented? Is the six- year term of protection in force? Are there 
any implementing regulations that would ex plain (1) what procedures the MOH would 
follow in order to protect originator's data from both disclosure and from reliance by 
generic companies and (2) what procedures would generic companies follow to obtain 
state registration for medical products.  Plea se explain the relationship of Article 18.6 
with Article 26 of the same law, which allows for the accelerated review of the marketing authorization applications for generic drugs. 
 
Article 18 of Federal law FZ-61d.d. 12.04.2010 has been complemented with section 7 of the 
following content: «It prohibited to receive, disclose, commercially use and use for state registration any information on non-clinical research of medical products and clinical research of 
medical products, provided by the applicant for stat e registration of medical products without their 
permission for six years since the date of state registration of a medical product.   
Non-observance of the prohibition stated by th e abovementioned section entails amenability in 
compliance with laws of the Russian Federation.  Turnover of medical products registered with vi olation of this section on the territory of the 
Russian Federation is illegal» 
 The abovementioned section applies after 22 August 2012.  
 
To observe requirements of Section 7 of Article 18  and prevent violations of exclusive rights of 
developers of medical products the Ministry of Heal th of the Russian Federation in its draft bill «On 
amendments to Federal law «On turnover of medica l products» and to article 333.32.1 of part two 
of the Tax Code of the Russian Federation» made an amendment to the composition of the registration dossier (article 18, section 3) by including documents that verify:  
"12) presence of intellectual rights 
 13) presence of consent of an applicant of an original medical product to use information about 
results of non-clinical and clinical researches of the original medical product in case less than six 
years has passed since the registration of the original medical product."  
Article 26 FZ-61 d.d.12.04.2010 «On turnover of medical products» applies only to urgent 
production of experts evidence but not to urgent  registration. Since rapid production of experts 
evidence may be applied to reproduced medical products provision of information obtained during non-clinical and clinical researches of the original medical product and published in specialized IP/C/W/592 
 
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  publications is possible during such procedure if the original medical product is not covered by 
patent protection.  At the same time the Russian Federation according to the Doha Declaration (on the TRIPS 
Agreement and Public Health) of 2001 in which a concern about the impact of intellectual property 
rights on medical products prices was expressed and ultimately reserves the right to consider 
applying Article 8 of the TRIPS Agreement in terms of implementing the right to health, which 
states that during drafting or amending of national laws or regulations member-states can take 
measures necessary in protecting population's health, as well as Article 30 of the TRIPS agreement which contemplates some exclusions from excl usive rights granted by patents while barring 
unjustified limitations of rights of patent-holders and third parties. Particularly the right to «early 
usage» does not contradict this article (the so-called Bolar provisions) which allows generic drugs 
producers to conduct all the procedures and trials  necessary to registration of a generic drug 
before patent to the original drug expires (or exclusive research data regulations). As a result they 
are guaranteed the possibility of entering generi c product to the market right after the stated 
period has expired.  
Actually a series of amendments in the Law on Ci rculation of Medicines N61 is considered by the 
Government.   
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