Введение в концепт Общей теории авторства

Труды по интеллектуальной собственности. 2023. Т. 46. № 3. С. 38–75.

Fedotov M.

The article substantiates the possibility, expediency and relevance of developing the concept of the General Theory of Authorship as a metatheory of modern intellectual property law. Analyzed - in order to identify contradictions and gaps - the main provisions of the existing concept of intellectual property rights. The groundlessness of equating the means of individualization with the results of intellectual activity is substantiated, shortcomings in the current legislation on intellectual property are revealed. Correlations of the concepts "intellectual property", "intellectual property rights", "intellectual rights" are investigated.

The concept of the General Theory of Authorship puts the Author, that is, the subject of law, the creator, at the center of the entire ecosystem of intellectual property, and not the result of his intellectual activity or means of individualization, that is, the object of law, as the concept of intellectual property law actually does. Naturally, the change of the “starting point” inevitably changes the entire system of logical connections within this sphere, forming a somewhat different “picture of the intellectual world”.

The proposed approach allows us to formulate the basic concepts of the General Theory of Authorship, namely "Author" and "object of intellectual property", as well as concepts derived from them, to analyze the main properties of intellectual property objects, which include: intangibility, heterogeneity, human-centeredness, creativity, hermeneuticity .

The existing systems of legal protection of intellectual property objects implicitly imply the existence, in addition to the Author, of another subject, without which an intellectual property object cannot take place as an object “for others”, - the one who recognizes a technical solution as an invention, packaging as an industrial design, and a text, image or three-dimensional object is a work of science, literature or art. In the case of the objects of the registration system, such a subject is the patent office, in the creative system - the user, the consumer. The article substantiates the thesis about the "co-authorship" of the user in the creation of an object of intellectual property as an object "for others".

Keywords: интеллектуальная собственность, авторское право, информация, авторство, patent law, патентное право, intellectual rights, интеллектуальные права, copyright, information, intellectual property, товарные знаки, trademarks, средства индивидуализации, ВОИС, means of individualization, authorship, культурные права, cultural rights, general theory of authorship, общая теория авторства, WIPO