Zhetpisbaev B.A.

Doctor of Law, professor of Law faculty, Al-Farabi Kasakh National University

Zhanibekov A.K.

Doctor of PhD, associate professor of Department of Criminal law, Criminal procedure and Criminalistics, Law faculty, Al-Farabi Kazakh National University

CURRENT PROBLEMS OF HISTORICAL COPYRIGHT DEVELOPMENT

Since ancient times the mankind aspires to protect and keep what is unusual, original and exclusive. Therefore the concept of an author's right, as well as a concept of intellectual property appeared for a long time. More than 200 years ago in the European countries appeared a right to non-material results of intellectual activity (the literary work, art, the invention, etc.). It was designed by analogy with ownership right on material objects.

Some ideas on which the modern author's right is based came from very remote times. First of all, it concerns idea of special connection between the work and its creator. Loan of someone else's work in ancient times was considered morally reprehensible and distortion of the work was condemned by public opinion in antique Greece and Rome, earlier time in India. In due time in Greece there was situation by which manuscripts of the major tragedies had to be checked in official archive in order to have possibility to confirm whether direction of a play corresponds to the original text [1, p. 58].

At the same time, it should be noted that history of development of an antique civilization in the sphere of an author's right is full of contradictions. Evidence of this fact is that in Ancient Rome – the primogenitor of the modern right, there was not paid due attention to development of literature and art. In Ancient Greece more attention was paid to these questions that eventually found reflection in issues of legal regulation results of creative activity of this country [2, p. 139].

Meantime, despite of the fact that nowadays recognized intellectual property items were already created at that time, for example, Gaius Julius Caesar`s “Gallic Wars” essays. Nevertheless, no special legislation, or allocations of these objects in special legal category were not existed. Moreover, for example, the literary work which is written on someone else's writing material belonged not to the author, but the owner of writing material.

Analyzing this situation, the famous Russian civilian I. A. Pokrovsky wrote: "Not only in legal systems of the primitive people, but even in Roman law spiritual activity of this sort did not grant any subjective rights for its products to their authors and did not apply any legal protection. Everyone could publish or reproduce his work without the author's consent, perform its technical invention" [3, p. 46].

Over the centuries complaints to distortion of the text were extended stronger. For example, Martin Luther was indignant concerning broad reprinting of his works: "Harm could be stood if people treated my books only in ill use. But now they print my books, showing such haste that when I read these books then I do not recognize them … This fraud - to deceive the simple person by means of our name" [2, p. 178].

First of all, Martin Luther directed his anger against the distorted reprinting, in his words is felt that he does not agree with similar updates. Such point of view was rather new, but at the time of Luther sporadic we meet the thought that the author has to have the right of control of reprinting and other forms of the publication and consequently, the opportunity to gain income from use of his work.

England legitimized what it is probably possible to consider the first law in the field of an author's right. It happened in 1709 to adoption of the status of Anna (The statute of the queen Anna) which provided to authors legal protection on the work for a period of 14 years which during lifetime of the author could be prolonged for 14 years. The monopoly to publish and republish the work was caused by registration and mailing of nine copies of the printed book in universities and libraries. The law set one of the most important principles of an author's right - the principle the "copyright" granting to the author the right for protection of the published work and forbidding replication of the work without its consent. The law established the right of the publisher for the published work within 14 years from the moment of its publication, and also gave the chance to prolong this term for 14 years during author`s lifetime [4, p. 22].

In the same years there were first feudal laws of the North American United States on protection of books, cards, performances and other forms of creativity [5, p. 96].

In France in the Decree of the Constituent assembly of 1789 it was proclaimed: "Everything that the author opens for public becomes public property". However, two laws were adopted a bit later (1791 and 1793) which for the first time in the history guaranteed protection of all forms of creativity (literary, drama, musical, graphic) at reproduction by all known methods at that time.

Thus, in France in 1791 and 1793 there was created the legislation on legal protection of writers, artists and worked up to 1957; long time it was a sample for the majority countries. This legislation was accepted under the influence of the natural and legal ideas of that time. According to these ideas, the right of the creator for his work had to be considered as the right of a private ownership for performing spiritual creativity, and it was necessary to recognize it in the same high degree, as well as the right of a private ownership for material values.

After England and France provisions of an author's right were also apprehended by other European countries.

After the rights of writers and artists were enshrined in the legislation, the period began (all 19th and the beginning of the 20th century) which was marked by their continuous expansion and development. The increasing and bigger number of types of works was taken under legal protection, and protection was directed against the increasing and bigger number of ways to use works. Time of action of legal protection increased up to 50 years after the death of the author. Today it is the most often found term of protection of the author`s right, and the majority of legislations on an author's right include as special situation also protection of “droit moral” (the concept close to a concept of the personal non-property right of the Soviet author's right).

At last, there were created prerequisites for development of the international system for protection of author's rights and in 1886 acceptances of the first multilateral Berne conventions on protection literary and works of art. Then and other international treaties (conventions), regulating the sphere of intellectual property.

The Berne convention was adopted on September 9, 1886 in Bern, (Switzerland). The first participants of the convention were Belgium, Germany, France, Spain, Great Britain, Tunisia and Switzerland. The convention was revised several times: 1896 in Paris, 1908 in Berlin, 1914 in Berne, 1928 in Rome, 1948 in Brussels, 1967 in Stockholm and 1971 in Paris. At the choice of the name of the international convention was offered Union pourlaprotectiondela Propriétélittéraireetartistique (ph. The union on protection of literary and art values), however, such name was opposed by delegation from Germany as under the internal laws it protects not literary property, but an author's right (Urheberrecht). French opposed this term (ph. Droitd'auteur), though it used in the contract with Germany in 1883. As a result, at a conference of 1885 it was decided to use the term "pourlaprotectiondesouerves" (about works protection) though it was also not quite exact as describes works, but it is not right on them. Administrative functions concerning the Berne convention are carried out by World Intellectual Property Organization from the moment of the foundation in 1967. The USA joined the convention in 1989.

Formation and development of an author's right in Russia differ in certain features. In Russia the author's right appeared only in 1828. Initially the results of the authors` rights of creative activity were in a varying degree equated to an ownership right, sometimes direct reference to movable property. Such approach was based in many respects on the theory of an absolute law which recognized the creator`s work an ownership right on the achieved creative result [6, p. 11-18].

The development of the Soviet author's legislation provided some basic authors` rights which generally came down to the right to the fee for use authors` works. The sizes of the fees and an order of their payment were established by the state. Payment of the fees was made generally through the half state organization — All-Union Agency on Copyright and its branches in federal republics. The term of protection of author's rights by the general rule made the term of all life of the author and 25 years after his death. Thus, in Soviet period the author`s rights were truncated and not full [7].

The author's right governs the relations arising in connection with creation and use of science work, literature and arts (author's right). The author is a natural person whose creative activity created the work. The author's right extends to the works of science, literature and art which are result of creative activity irrespective of appointment and the advantage of the work, and also from a way of its expression. It is necessary to focus attention to compliance of the norm formulation to the valid will, intention of the legislator. Inaccuracy of formulations generates a possibility of ambiguous interpretation that can result not only in difficulties in practice of application of author's precepts of law, but also to a full perversion of will of the legislator that finally will be reflected in society`s life in general.

References

1. Chernilovsky Z. M. General history of state and law. – M.: Lawyer 1996. – 576 p.

2. Anthology of state history and law of foreign countries: In 2 t. / edition, professor N. A. Krashennikov. T. 1: Ancient world and Middle Ages / by O. L. Lysenko, E. N. Trikoz. – M.: Norm, 2005. – 816 p.

3. Pokrovsky I. A. Main problems of civil law. – M.: The statute (in the “Classics of the Russian Civil Law” series), 1998. – 353 p.

4. Reavers T. The reference book for speakers about possession, acquisition, release, collecting and administrative management of the rights. London, 1998.22 pages.

5. Svechnikova I. V. Author's right: education guidance. — Moscow, 2010. - 222p.

6. Kantorovich Y.A. Literary property. With the appendix of all resolutions of the current legislation on literary, artistic and musical property. - SPb., 1895. – p. 18.

7. Grishayev S. P. Intellectual property: education guidance. — M.: Lawyer, 2004. – 312 p.