On January 11, 2024, the first session of the year of the Intellectual Property Consultation Point for Exporters takes place. The consultant being on vacation forced the questioner to switch from the Zoom platform and continue the dialogue over the phone
The manufacturer of a deck of metaphorical associative cards, who would like to place an offer for their sale on online platforms such as Wildberries, asked a question regarding the need to obtain authorization documentation for their production for sale on the market of the Republic of Belarus and the Russian Federation.
On the one hand, the manufacturer got the expected answer, as it mostly concerned the possibility of obtaining supporting documents for the products of their own production, and the interested party was referred to the Department of Certification and Expert Activity of the BelCCI for advice on this issue.
On the other hand, the questioner received an unexpected additional answer regarding intellectual property protection issues.
Copyright form. Drawings of metaphorical cards are copyrightable works of painting and drawing. They have an author (co-authors) who are assigned copyright in the form of personal non-property rights. The artwork also has a property right holder. Property rights are assigned to the right holder by contract or by virtue of the service of the work created by the author. And so, these rights must be identified and put in writing between the author and the copyright holder. The author may also be a right holder, but it all depends on the nature of the process of creating the work: independently or in fulfillment of an official assignment.
One of the tools for indicating the copyright in the publication of a work is an indication of the copyright © mark. As is well known, copyright in works arises due to the fact of their creation. No formalities are required for copyright to arise and be exercised. In the absence of evidence to the contrary, the author of the work is considered to be the person indicated as the author on the copy of the work (presumption of authorship (Clause 2 of Article 8 of the Law of the Republic of Belarus “On Copyright and Related Rights”).
The author or other right holder for notification of his exclusive right to a work may, at his discretion, use the copyright protection sign, which is placed on each copy of the work and must consist of three elements:
the Latin letter © in a circle;
the name of the right holder;
the year of the first publication or other publicizing of the work.
The presence of a mark affixed to a work does not extend copyright, cannot serve as a basis for establishing the fact of copyright ownership, but is informational in nature and helps to identify the copyright holder.
The basis for establishing the fact of copyright ownership, but not necessarily, is the deposit of the work in the systems operating in the country informing the public of the attempt to secure rights to the work. For example, in the BelCCI (UE “Belpatentservice”). The author, or his employer (depending on the nature of the process of creating the work), may apply for deposit.
In addition, if the issue of card production has not yet been settled with the author of the drawings, this should be done as soon as possible, since the author in respect of his work or other right holder owns the exclusive right to the work, as well as other property rights provided for by the Law of the Republic of Belarus “On Copyright and Related Rights”.
The exclusive right to a work means the right of the author or other right holder to use the work at their discretion in any form and by any means. In this case, the author or other right holder has the right to authorize or prohibit others from using the work.
The manufacturer should keep in mind that the use of a work includes, in particular: reproduction of the work and distribution of copies of the work through sale or other transfer of ownership.
What is important is the following. If copies of a legally published work are, with the author's or other rights holder's permission, introduced into civil circulation within the territory of the Republic of Belarus through their sale or other transfer of ownership, they may be further distributed on the territory of the Republic of Belarus without the author's or other rights holder's consent and without payment of remuneration, except in the case of the right of succession.
Patent form. Another way to secure rights to deck of cards drawings is to obtain a patent for the “Deck of Cards” industrial design. The design protection certificate will indicate the patent number, the copyright holder, the author(s), the class of the Locarno Classification, the application number, the date of the application, the date of state registration of the patent, the date until which the patent is valid and the images of the cards themselves. Of course, if the cards are going to be commercialized, the patent form of protection will be an additional tool for generating income from their production and sale. The patent owner will be able to enter into a license agreement to transfer the right to produce a deck of cards to another manufacturer. That is why the manufacturer of a deck of cards, who asked the question, needs to settle this issue by finding out from the author or other copyright holder whether there is a patent form of protection for this product.
