Copyright law of the Soviet Union

The old Tsarist Copyright law of 1911 was not immediately invalidated after the October Revolution. The old law, with its copyright term of 50 years after the author's death and its possibility of transferring copyrights in their entirety from an author to a publisher, continued to be valid initially.[7][8][9] But the nationalizations in all areas of the economy soon considerably restricted the avenues through which an author could publish her or his work, even if her or his copyright remained initially untouched.[7] All publishing activities were placed under the supervision of the State Publishing house by a decree of May 21, 1919. On July 29, 1919, the government declared a state monopoly on unpublished works of deceased authors; and on April 20, 1920, all books (including those in private possession) were nationalized, except those in public libraries. Theatres and film studios as well as the photographic industry were nationalized in August 1919. Private publishing houses were eventually liquidated as well.[10] The right to translate foreign publications into Russian was also monopolized by the government.[11]

The legal situation concerning copyright in the Soviet Union in the early 1920s was confused. The Tsarist copyright law was still partially in effect, but its status was unclear. There were a number of decrees affecting copyright, but there was no unified legal treatment.[11] The new Civil Law of the Russian SFSR, which became effective on January 1, 1923, did not contain any provisions on copyright either.[10][11] In 1924, the Council of People's Commissars launched a project to develop a new copyright statute.[18] On January 30, 1925, the Central Executive Committee passed the new Fundamentals of Copyright Law.[19] These "Fundamentals" (Osnovy—Основы) were to serve as a model law for the laws of the individual republics of the Soviet Union, which all—with the exception of the Ukrainian SSR[20]—passed laws implementing the Fundamentals at the republic level in 1925/26; the RSFSR Copyright Act was passed on October 11, 1926.[19] All these republics' laws did not deviate from the Fundamentals.[21] Only in the Azerbaijan SSR were the copyright provisions included in the Civil Code of the republic; in all other SSRs, the act was a separate ad-hoc piece of legislation.[18]

The 1925 Copyright Act provided for a general copyright term of 25 years since the first publication of a work. If an author died before that period had expired, the heirs were granted the right to receive royalties according to the schedules established by the government for the shorter of the remaining part of the 25-year term or during 15 years. If a work was published after the author's death, this right was limited to a term of 15 years from the posthumous publication.[22] For some specific classes of works, such as encyclopedias, photographs, or also choreographic and pantomimic works the copyright term was shorter than the general 25-year period.[23]

The law recognized the exclusive right of the author to publish, reproduce, and distribute his work,[24] and also his right to remuneration, i.e., the right to receive royalties for uses of a work.[22] The law included provisions enabling authors to transfer copyrights for a limited time (five years) to a publisher by contract; only publishing contracts with state, trade union, or Party publishing houses could be of unlimited duration.[18] The contract had to specify precisely the intended use of the work, the number of copies printed, the royalties to be paid, etc.[25] The allowed range of the amount of royalties was prescribed in governmental remuneration schedules.[26]

The copyrights of an author were limited by a large array of free uses allowed without the author's consent.[25] Amongst these free uses was the "freedom of translation", which had already existed in the old Tsarist copyright law. A translation of any work could be done without the author's consent, and the translator was granted a separate and independent copyright on the translation.[27] This provision was, already before Soviet times, motivated by the desire to ensure an economically viable way to translate works between the many national languages of the country.[27] A decree on March 16, 1927 clarified that radio broadcasts of theater or concert performances were also admissible free uses.[27] Compulsory licenses also existed in the 1925 Copyright Act. Public performances of a published work, for instance, were allowed without the author's consent, but were subject to the payment of the standard royalties.[25] The government also reserved the right to forcibly nationalize any work.[22]

Another characteristic that Soviet copyright law inherited from the Tsarist law was that copyright was automatic: copyright began with the creation of the work (not its completion or publication), and was not subject to registration.[1] Copyright covered all literary and musical works as well as works of the arts and scientific works[1] and also films[25] by Soviet citizens, as well as works by foreign authors that were first published in the Soviet Union or, if unpublished, existed there in some objective form, irrespective of the author's nationality.[4][5] An "objective form" was any form that permitted the reproduction of the work without any involvement of the original author.[28] Only creative works were subject to copyright; works of a purely technical nature such as telephone directories, business correspondence, accountants' statements, but also court decisions or decrees, did not fall under copyright.[29][30] Soviet courts interpreted this creativity requirement liberally; requiring only a minimal creative effort. A work created by a minimal paraphrase of an existing text could already be considered a new work eligible to copyright.[31][32]

After only three years, new Fundamentals of Copyright Law superseded the 1925 version. The new Fundamentals were passed on May 16, 1928, and again the Union republics implemented them by passing their own compliant copyright acts afterwards.[21] The 1928 law was similar to the 1925 one. It maintained the author's exclusive rights to publish, reproduce, distribute, and perform his works, and also his right to derive an income from such uses of his work.[33] It took over from the 1925 law the list of free uses, including the freedom of translation,[35][36] and also the cases involving compulsory licenses. The government reserved the right to nationalize a work without consent of the author.[35] In practice, an author's exclusive rights to publish and distribute his works was restricted by the requirement to do so through official channels and by the state monopoly over the printing and publishing industries.[37]

The copyright term was changed from 25 years following the first publication of a work to the lifetime of the author plus 15 years (15 years p.m.a.).[35] This change was applied retroactively also to works that had already entered the public domain under the old term.[38] Upon the death of an author, copyright passed onto his heirs or other legal successors.[35] For certain kinds of works, shorter copyright terms applied. Periodicals, encyclopedias, choreographic works, movies and movie scripts, and collections of photographs were copyrighted for ten years from their first publication.[35][39] Individual photographs were copyrighted for five years since their publication.[35][39] Photographs were only copyrighted if they bore the name of the studio or the photographer, the address, and the year.[40]

Individual republics of the USSR were free to devise their own rules for standard publication contracts and royalty schedules.[35] Royalty collection and payment was centralized through a state agency founded in 1932 and named in 1938 the "All-Union Administration for the Protection of Copyrights", (VUOAP – Vsesoiuznoe upravlenie po ochrane avtorskich prav; Всесоюзное управление по охране авторских прав, ВУОАП). The VUOAP was placed under the auspices of the Union of Soviet Writers and managed literary works.[41] Similar collecting societies existed for other kinds of works, such as compositions, movies, or works of the visual arts.[42]

Under the 1928 Copyright Act, courts did not grant any damage claims by private persons for copyright infringement. The payment of fines to citizens instead of to the state was seen as contrary to communist doctrine. When damages were granted, they were to be paid to the state.[43] Furthermore, the courts limited damage claims in copyright infringement cases to the sums defined by the existing standard schedules of remuneration issued by the government. If no schedule existed, no damages were awarded at all, even if the works were confirmed to be copyrighted.[44]

Although Soviet law, from 1925 on until the demise of the Soviet Union (and also beyond in the successor states of the USSR), has always maintained that copyrights existed on a work regardless of its purpose or its value,[45] the exercise of copyright in the Soviet Union was subject to the rules of censorship and the literary controls, the press legislation, the laws on printing, publishing, and selling, and Party directives.[46] In general, only authors of "socially useful" works could exploit their copyrights; on "useless works" such as Church hymns no economic rights could be enforced; and authors of undesirable works faced administrative, or social, or even penal sanctions.[47] What was "socially useful" was defined in a number of Party decrees (from 1925 to 1963, there were thirty-three such decrees).[48] Publishers, film studios, and so on, were expected to refuse to publish works that were considered non-compliant to the currently valid definitions of the goals of artistic activity as defined by these decrees.[47][49] In this way, the nominally exclusive rights of authors to publication were restricted by the need to go through the official channels and state-controlled publishing houses. As a way to bypass this governmental control for literary works samizdat developed: the non-commercial dissemination of a work in chain-letter fashion through carbon-copies produced by readers on their typewriters.[50] Many samizdat works were considered to be "anti-Soviet agitation" by the authorities and the authors were prosecuted under article 58(10) (later articles 70 and 190(1)) of the RSFSR Criminal Code or corresponding provisions of the other republics' penal laws.[51][52]

The copyright law of 1928 remained in effect essentially unchanged for more than thirty years. The numerous copyright-related decrees issued during this time concerned mostly administrative matters, such as the definition of the standard author's contracts for publication or the standard royalty tariffs.[53][54] In 1957, a decree declared that for a posthumously rehabilitated author, the copyright term of 15 years was to begin to run at the date of his rehabilitation, not at the date of his death.[55]

In 1961, the copyright law of the Soviet Union was completely restructured. For the first time, copyright law was incorporated into the federal Civil Code and no longer formed a separate piece of legislation. On December 8, 1961, the Supreme Soviet of the USSR passed the Fundamentals of Civil Legislation, which entered in force on May 1, 1962.[56][57] The eleven articles of Chapter IV of these Fundamentals covered the copyright law.[58] The overhaul of the copyright law was to settle doctrinal disputes by clarifying the old law and to adapt the law to the current practice.[58] Again, these new Fundamentals of Civil Legislation formed a statutory framework only (what is called a loi-cadre in French, or a Rahmengesetz in German); the fifteen Union republics then passed their own legislation in conformity with this union-wide framework.[21] New republic laws entered in force in all republics in 1964/65; in the RSFSR, the new Russian Civil Code, including the copyright provisions of chapter IV, became effective on June 11, 1964.[58] All these republics' laws were very similar, there were only minor differences.[59][60]

On February 27, 1973, the Soviet Union joined the Geneva version of 1952 of the Universal Copyright Convention (UCC). The UCC became effective in the USSR on May 27, 1973.[100] Until then, the USSR had not participated in any multilateral international copyright treaties; it had only concluded two bilateral contracts with Hungary (in 1967) and Bulgaria (in 1971).[101] The USSR timed its accession to the UCC to occur before the 1971 Paris version of the UCC entered into force.[102] Once the Paris version had become effective, accessions to the earlier Geneva version were no longer possible. The USSR would then have been forced to implement the somewhat stronger provisions of the 1971 Paris version, which in particular explicitly recognized an author's exclusive rights to reproduction, performance, and broadcast of a work.[102]

By virtue of the UCC, foreign works first published after May 27, 1973 outside of the USSR became copyrighted in the Soviet Union if

• the author was a national of any other signatory country of the UCC, irrespective of where this publication occurred, or if
• the work was first published in any other UCC country, regardless of the nationality of the author.[103]

Soviet works first published after this date also became copyrighted in other UCC countries.[103]

On February 21, 1973, six days before the USSR deposited its declaration of accession to the UCC, the Presidium of the Supreme Soviet of the USSR enacted a series of amendments to chapter IV of the 1961 Fundamentals to bring the Soviet copyright law in line with the minimum requirements the UCC imposed. The Union republics adapted their own laws accordingly; the RSFSR as the largest of the republics did so on March 1, 1974.[104] In 1978, the USSR declared its agreement with the use of Soviet copyrighted works in developing countries according to the rules laid down in the 1971 Paris edition of the UCC.[57]

Gorbachev's Perestroika also had repercussions on the copyright law. From 1987 to 1990, a number of decrees modified the legislation on copyright and related areas. New remuneration rates that defined much higher royalties than the previous schedules were issued in 1987; the decreasing scales were given up at the same time: the royalties for all subsequent printings of a work were defined uniformly to amount to 70% of the rates for the first publication.[129] Important changes occurred two years later, when the monopoly of the VAAP on foreign trade in copyrights was broken. Authors henceforth could negotiate directly with foreign publishers; and even the clause in the mandatory model contracts for publication that assigned this right from the author to his publisher was abolished. Likewise, Soviet publishers were free to negotiate with foreign authors or publishers licenses to publish foreign works in the Soviet Union.[130]

Also in 1987,[131] a work group tasked with adapting the Soviet copyright law to a market economy was formed.[132] In early 1990, the work group presented a draft for a revised section IV of the Fundamentals on copyright and a new section IV A on neighbouring rights.[131] But the proposal, comprising 32 articles, remained unused; the Supreme Soviet's Committee for legislation published in March 1990 its own draft version of the new Fundamentals that ignored many of the innovations found in the work group's proposal. This draft was, with some modifications, passed as law on March 31, 1991.[133] Despite the briefness of chapter IV of the new 1991 Fundamentals—it consisted of only 10 articles, of which 2 covered neighbouring rights and one was on measures against copyright infringements—it was a radical break with the previous practice.[134]

The new law aimed at harmonizing the Soviet republics' copyright laws, which had in some areas drifted apart over the years. This was achieved by making the 1991 Fundamentals more explicit and giving the republics less leeway to devise their own rules.[135]

The author of a work again was granted a set of exclusive rights: the personal (or moral) rights to authorship, name, and the integrity of the work, and the property (or economic) rights to the work: the right to publish or use the work, and the right to remuneration for use of the work or for granting permission to use the work. A "use" of a work was defined by a non-exhaustive list that included broadcasting, performance, modification, adaptation, recording, and distribution. "Publication" was clearly defined to be subject to the author's permission.[136]

The initial copyright owner in all cases was the "citizen" (i.e., the natural person) who had created the work.[137] The copyright of legal entities was abolished; publishers of scientific collections or encyclopedias as well as film studios were only granted a derived right to use the work in its entirety, subject to the remuneration of the authors.[138] For works made for hire, the employer was granted a similar right to use the work, limited to at most three years since the delivery of the work. Shorter terms could be defined contractually.[138] The state's authors' contracts for publication were no longer mandatory, and the upper limits to remuneration were dropped: contractual freedom was established.[139]

The copyright term was extended from 25 years to generally 50 years p.m.a. for all kinds of works,[140] and the law for the first time made explicit that no formalities were required for a work to be copyrighted.[137] Anonymous or pseudonymous works were copyrighted for 50 years since their initial publication, unless the real identity of the author became known during that time and thus 50 years p.m.a. applied. The moral rights to authorship, name, and integrity of the work were perpetual;[141] and authors could only transfer usage rights on a work (but not their right to remuneration for such uses, which always remained a personal right of the author).[139]

The list of free uses was reduced considerably, and the remaining allowed free uses were defined much more narrowly than before. Similar to fair use, any such free use was only allowed if it didn't infringe upon the normal exploitation of the work or the legitimate interests of the author.[139] Compulsory licenses were abolished altogether.[136]

Neighbouring rights were introduced for the first time in Soviet legislation. Broadcasters, performers, and producers of phono- or videograms were granted exclusive neighbouring rights for a period of 50 years since the first broadcast, performance, or distribution of a phono- or videogram. They were also granted—in excess of the provisions of the Rome Convention—the moral rights to name and integrity of the work.[142]

Before the new 1991 Fundamentals could enter in force on January 1, 1992, the USSR had been dissolved. The provisions of the 1991 legislation never became effective in the Soviet Union.[133]

In Russia, the Supreme Soviet of the Russian Federation passed a decree that made the USSR 1991 Fundamentals effective in Russia from August 3, 1992 on, insofar as these Fundamentals contradicted neither the Constitution of the Russian Federation nor other legislative acts of Russia passed after June 12, 1990,[143] and only on a temporary basis until the Russian Federation would have adopted a new, own Civil Code.[135] The original USSR executive decree for the 1991 Fundamentals, which laid down the transitory provisions, did not enter in force in Russia, though,[144] and the old Russian Civil Code remained in force insofar as it didn't contradict the 1991 Fundamentals. Section IV of the 1991 Fundamentals was thus in effect for exactly one year until on August 3, 1993, the new Copyright law of Russia entered in Force.[135]

That new Russian law had a general copyright term of 50 years p.m.a.[145] and was retroactive,[146] restoring copyright on works on which the shorter Soviet copyright terms had already expired[147] and even copyrighting works that had until then not been considered copyrightable works at all (such as performances, which under the 1993 law were subject to a neighbouring right that had not existed under Soviet legislation).[148] The new Russian copyright terms from the 1993 law became applicable to all works of authors who had died 1943 or later, or to works published in 1943 or later.[149] For authors who had lived and worked during the Great Patriotic War, the copyright term was extended by four years; the corresponding year for such authors and their works was thus 1939.[150] For work first published after the death of the author, the term started at the posthumous publication of the work,[151] and for posthumously rehabilitated authors, the copyright term of the 1993 law began to run with their rehabilitation, making it possible that even older works were placed under copyright again in these cases—examples include the works of Boris Pilniak (executed in 1938, rehabilitated in 1957), Isaac Babel (executed 1940, rehabilitated 1954), or also Osip Mandelstam (died 1938, rehabilitated 1956/1987).[152] Other authors on whose works copyright was restored were Anna Akhmatova (died 1966), Vera Mukhina (died 1953, sculptor of the statue "Worker and Kolkhoz Woman"), Aleksey Shchusev (died 1949, architect of the Lenin Mausoleum), Aleksey Tolstoy (died 1945), and many others.[152] An extreme example is Mikhail Bulgakov's The Master and Margarita: the work was first published posthumously in 1966. At that time, the Soviet copyright term of then 15 years p.m.a. had already expired as Bulgakov had died in 1940. The new Russian copyright law from 1993 placed this work under copyright again, because the 50-year term was calculated from 1966 on.[153]

The old Soviet law was thus rendered largely obsolete in Russia; it remained applicable only to copyright violations that had occurred before August 3, 1993.[154]

• English translation of Chapter IV of the 1961 Fundamentals, taken from Levitsky's book.
• Chapter IV of the 1964 Civil Code of the RSFSR, in a post-1973 edition (with the 25 years p.m.a. term); in Russian.
• Chapter IV of the 1991 Fundamentals, in Russian.
• English translation of the 1993 copyright law of Russia, with amendments up to 2004, including the executive decree by which the law entered in force.
• History of the VAAP, in Russian.