Copyright expertise in Russia

When considering disputes in the field of copyright, various methods of proof are used. One of the most convincing evidences will be the conclusion on the results of the expertise, which is carried out by professional experts in the field of science, art, literature and other categories of creative activity. In this article we will consider what issues are subject to copyright expertise, and what consequences will result from the conclusions of the expert.

When the examination is conducted

One of the options for protecting copyrights and resolving disputes related to the use and disposal of works is to go to court. The above procedure allows you to solve the following issues:

• confirm or challenge the right to a work or other result of creative activity;
• prosecute the infringer of exclusive rights, including appropriation of authorship, illegal reproduction or distribution of others' works, etc;
• partial borrowing of someone else's work to create a new object of creative work;
• recovery of damages or compensation for copyright infringement.

The court must be thoroughly versed in the provisions of national and international copyright law. However, a number of questions require special knowledge, which only experts have.

In order to conduct an expert examination, an application by one of the parties is required, or the court can initiate this procedure on its own. In addition, the plaintiff or defendant may apply to an expert even before the dispute is submitted to the court - often this option allows to avoid lengthy court litigation. For the appointment of a forensic examination, a determination is made in which the court and the parties form the questions for the expert action.

Here is the range of questions that can be assigned to an expert for examination:

• whether the work, or any part of it, belongs to a particular author or group of co-authors;
• whether the work, or any part of it, is subject to copyright (for example, copyrights are not established for the texts of legislative acts, as well as for a number of other official documents);
• whether there are similarities between the presented works or their partial fragments, i.e. whether borrowing has taken place;
• whether the use of the work is an infringement of copyrights;
• the amount of damage caused by copyright infringement (e.g. the market value of the exclusive right, or the price of the sold copies of the tangible media).

The exact list of questions will depend on the circumstances of the case.

The initiator of the petition may choose an expert organization, or the court decides this question independently. If a participant in the process does not agree with the conclusions of the expert, it is possible to challenge the expert opinion, or to petition for a repeat procedure. Such issues will be at the discretion of the court.

How does the examination take place

The expertise is performed on a fee basis, and the amount of the fee will depend on the scope and complexity of the study, as well as the rates of the expert organization. As a rule, the costs of the expertise are borne by the initiator, and after the end of the trial they are reimbursed from the losing party.

The following materials are placed at the expert's disposal for research:

• tangible and/or electronic media containing the work;
• written documents;
• acts of control purchase and seizure of counterfeit copies of the work;
• certified pages from Internet resources;
• Audio, video and photographic records;
• materials of administrative and criminal cases.

Expert actions take place by studying the handwriting, linguistic and speech features of the alleged author, stylistic coincidences with previously published works. Author's notes to the text, correspondence with the publisher are investigated. The number of copies of counterfeit products and materials for their production, the price of the sale is determined for the assessment of the size of the damage.

The conclusion of the expert must contain reasoned conclusions on all questions. If the expert has difficulty giving an unambiguous answer to one or more questions, he must present his findings in the conclusion. On the results of the examination there may be additional questions and doubts - they can be resolved in the course of a repeat or additional expertise.

The expert report is sent to the court and will be used as evidence. If necessary, the expert may be summoned to the court hearing to give explanations. Although the expert opinion is the most accurate among other evidence, the court must consider all the arguments and circumstances. If the expert's opinion is not taken into account in reaching a decision, the court must justify such a conclusion.