Copyright law of the Soviet Union
The Copyright law of the Soviet Union went through several major revisions during its existence. The first Socialist copyright law was passed in 1925. Three years later, it was superseded by a second version that remained in force for more than three decades, until it was replaced in 1961.
Throughout these various revisions of the law, some characteristics remained constant. Copyright was automatic in the USSR: a work was copyrighted from its creation, and registration was not needed.[1] Only creative works expressed in some objective form were subject to copyright.[2][3] The duration of copyright was much shorter than customary in the West. Copyright was, from the beginning, limited to works of Soviet citizens and to works by foreign authors that were first published in the USSR (or, if unpublished, existed in objective form on the territory of the Soviet Union).[4][5] The economic rights of authors were limited by a long list of uses that did not constitute copyright infringements,[6] and mandatory official royalty rates limited the income of authors. Soviet copyright law also granted the freedom of translation (until 1973): any work could be freely translated and then published without the original author's consent.
The accession of the USSR to the Universal Copyright Convention, which became effective on May 27, 1973, was a major turning point. Copyright was extended to also cover works of foreign authors that were first published abroad after that date, and the freedom of translation had to be abolished. For the first time in history, Russia (as a republic within the Soviet Union) had joined a multilateral, international copyright treaty, ending the country's self-imposed isolation (but also its independence) in copyright matters.
During Perestroika, the law and the administrative procedures were changed piece by piece, relaxing the governmental control over authors' exercises of their copyright. The official royalty rates were dropped, and the state monopoly on foreign trade on copyrights was abolished. Authors for the first time could legally negotiate publication contracts with foreign publishers themselves. A new, profoundly revised Soviet copyright law was passed in 1991, but the Soviet Union was dissolved before it could enter in force.
Copyright Act of 1925[edit]
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]
1991 Fundamentals[edit]
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.[130] 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.[131]
Also in 1987,[132] a work group tasked with adapting the Soviet copyright law to a market economy was formed.[133] 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.[132] 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.[134] 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.[135]
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.[136]
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.[137]
The initial copyright owner in all cases was the "citizen" (i.e., the natural person) who had created the work.[138] 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.[139] 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.[139] The state's authors' contracts for publication were no longer mandatory, and the upper limits to remuneration were dropped: contractual freedom was established.[140]
The copyright term was extended from 25 years to generally 50 years p.m.a. for all kinds of works,[141] and the law for the first time made explicit that no formalities were required for a work to be copyrighted.[138] 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;[142] 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).[140]
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.[140] Compulsory licenses were abolished altogether.[137]
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.[143]
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.[134]
Transition to post-Soviet legislation in Russia[edit]
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,[144] and only on a temporary basis until the Russian Federation would have adopted a new, own Civil Code.[136] The original USSR executive decree for the 1991 Fundamentals, which laid down the transitory provisions, did not enter in force in Russia, though,[145] 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.[136]
That new Russian law had a general copyright term of 50 years p.m.a.[146] and was retroactive,[147] restoring copyright on works on which the shorter Soviet copyright terms had already expired[148] 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).[149] 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.[150] 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.[151] For work first published after the death of the author, the term started at the posthumous publication of the work,[152] 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).[153] 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.[153] 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.[154]
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.[155]