ПРАВОВОЙ РЕЖИМ АРХИТЕКТУРНЫХ РАБОТ В МАКЕДОСКОЙ ПРАВОВОЙ СИСТЕМЕ
Иликвски А.1, Стефановски Л.2, Угриновска Е.3
1Профессор, кандидат юридических наук,
Международный Славянский Университет “Гаврило Романович Державин”, Свети-Николе, Македония;
2магистр,
Факультет Права, Университет в Нише, Сербия;
3магистр,
Национальный экзаменационный центр
ПРАВОВОЙ РЕЖИМ АРХИТЕКТУРНЫХ РАБОТ В МАКЕДОСКОЙ ПРАВОВОЙ СИСТЕМЕ
Аннотация
Предметом исследования данной работы является правовой режим архитектурных работ в македонской правовой системе. Для этих целей, под архитектурной работой мы понимаем вид искусства, который выделяется из прочих видов искусств, охраняемым авторским правом. Субъектами архитектурной работы являются автор и владелец, закон об авторском праве, а также ряд разрешений, регулирующий данную деятельность. Помимо этого, есть ряд существенных ограничений экономических прав в пользу общественного интереса. Общественный интерес стоит выше чем интерес автора работы.
Ключевые слова: правовой режим, архитектурная работа, авторское право, разрешение, свободной использование, Республика Македония, Македония.
Ilievski A.1, Stefanoski Lj.2 , Ugrinovska E.3
1Prof. PhD of law,
International Slavic University “Гаврило Романович Державин” Sveti Nikole, Macedonia,
2Master of science,
Law Faculty in Nis, University in Nis, Serbia,
3Master of science,
National Examination Center
THE LEGAL REGIME OF THE ARCHITECTURAL WORK IN MACEDONIAN LAW
Abstract
The subject of studying and developing in this paper is the legal regime of the architectural work according to the Macedonian law. For that purpose, defining the architectural work as an art work, its specifics that stand out not only from other copyright works, but also works of art. Furthermore, determining the subjects of the architectural work (author and owner), the copyright law (moral and economic rights) as well as the scope of authorization that is given to the entities themselves. There is also a great deal of significance in the limitations of the economic rights in favor of the common interest, which are taken on a lower scale then the personal interest of the author himself.
Keywords: Legal regime, Architectural work, Copyright, Legal License, Free Use.
INTRODUCTION
The legal regime of the architectural work is determined by the relevant sources of law, both international and domestic (national sources of law).
The architecture work is an individual and intellectual creation that is the product of creativity, inventiveness, originality and artistic approach of the author who expresses his own idea or a concept in some form or space. Because of all these features, the architectural work is categorized as a copyright work in the field of art, and has the same legal status as well as other types of copyright works (Bern Convention, Article 2 1979). It includes works from the external architecture (monuments, bridges, residential and public buildings), interior architecture (interior decoration of residential and commercial properties), theater decoration, stage decoration and horticulture.
Given the specific nature of art in terms of separation of the work as a physical object from one hand and the rights enjoyed by the author on the other hand (www.artuntitled.com., 2009), architectural works have certain characteristics, which imposes different legal treatment in relation to other works. This is consistent with the semantic nature of architectural work, which the Macedonian legislator sets it apart from other works, it is categorized as a separate act with its own specifics and has provided a separate legal regime. Thus, the physical structure of the work, which is mostly owned by the person who bought the actual work, according to the rules of the property right, does not mean that he gained some other rights (e.g. right of reproduction), except the right to ownership of the physical object work. Therefore, several questions are raised regarding the determination and clearly defining the rights enjoyed by the author of architectural actual work, defining the rights accorded to the holder of the architectural work and copyright restrictions in terms of licensing and legal free usage of the architectural work.
The forms of abusing of copyright are numerous, especially with the development of technology and the ability to digitize the copyright work or its transformation into an electronic form, which is the basis for its sanctions. This directly implies the need to ensure adequate legal protection, not only nationally but internationally. Thus, legal protection is arranged as with a set of international law and national legislation in the field of copyright. The regulation on copyright is established with the aim, not only to encourage creativity and inventiveness of the human intellect, but also to create all necessary conditions for evaluation of its intellectual efforts.
AUTHORSHIP AND COPYRIGHTS
Subjects of architectural work, or people who enjoy copyright protection, can only be: the author and the rights holder. The author of an architectural work may only be a natural person who created the copyright work, while legal persons and other forms of collectivities can’t be the author but the copyright holder. In contrast, In contrast, the author may be copyright holder and economic to exploit his work. So, the use of foreign copyright work requires specific legal basis, it can be according to the author of that specific work, legislation or judicial decision that allows immediate use of the work (Gliha I., 2004 p.794.). “An author” can be more than one person that has co-written the architectural work. It is important to make a distinction between the intellectual work of the architect and the technical assistance provided by the technical artist, which argues that a person who always helps in the process of creating the work is co-author. Modern legislation, in particular members of the Rome Convention (RC) and the Berne Convention (BC), according to the general principle of national treatment and the principle of assimilation, specifies that in addition to citizens and legal entities established in a particular Member State, the right to equal protection enjoy the country and foreign authors and holders of related rights. Same treatment of a legal protection in the particular country enjoy and Stateless Persons and persons who are recognized refugee status, but after the prescribed conditions necessary accommodation or under international agreements.
Copyright covers two categories of rights: moral rights and economic rights. Subject to the protection of moral rights is the personality of the author-worker and his copyright work. The main feature of the author's moral rights is their non-transferable rights, as consequence that those rights are tied to the personality of the author, not the case with the economic right, contrary to the moral rights are transferable (Дабовиќ Ј., Пепељуговски В., 2006., p131.). This implies that the author has the right to seek compensation for any form of usage of his creation, and not a single right to compensation because the value of his intellectual labor is not only through a use of his work. This is not the case with architectural works.
Moral rights include four types of powers: the right to paternity (recognition of authorship), the right of integrity, the right to publish the work and the right of cancellation (withdrawal or repentance).
Paternity right is the right of authorization of the author to retain the right to recognition that is the creator of the work. He has the right to request to be recognized as an author, or any use of the work to be mentioned his name, pseudonym or mark, unless he states in writing that he did not want to be identified (Дабовиќ Ј., Пепељуговски В., 2006, p. 125), i.e. the right to prevent any kind of abuse and opposed to any attempt of unauthorized appropriation of his work.
The right to respect the individuals is provided in Article 6 bis (1) of the BC 1928, in which member states are obliged to protect the author with respect to his work and the right to act as the object of any kind of distortion, mutilation or other modification and harmful behavior in terms of the said act, which would result in injury reputation of the author (Goldstein P., 2001, p.287). The author is only authorized to modify their work, even with a contract cannot be denied the right to respect the integrity of his work.
The right of publication as a fundamental moral law authorizes the author to decide whether, when and how for the first time the work will be published. The purpose of this authorization is the ability of the author to present his work to the public. The right of publication as morally right is implied by the economic right of reproduction, public performance and distribution through which the author can determine the conditions under which his work was first presented to the public (Goldstein P., 2001, p.289).
Fourth is moral authority of the author's right of cancellation (withdrawal or repentance). The right of cancellation is explicitly moral right of the author to withdraw the work from the market, which is conditioned by the holder (eg. publisher) to pay damages for lost profits resulting from the withdrawal (Goldstein P., 2001, p. 290). The author can not waive the right of cancellation. From the right of cancelation, the author derived two powers, namely: to withdraw the work from the market or to change the already published work. In both cases, the author's is obliged to compensate to the owner the damage that would have inflicted with the withdrawal. The essence of the right of cancellation is to give the author the right to influence the future use of its already announced or published work.
An integral part of the content of copyright despite moral rights, are the economic rights, which protect the property interests of the author, and these rights are also called property rights.
Economic rights is exclusively (exclusive monopoly) right of the author to exploit the copyright work. The use of the work is a right, not only to use, but also to have use value of the work in order to achieve economic benefit, not later than the expiration of the legally prescribed period of protection of copyright economic rights (Janjic M., 1973, p. 327).
The forms of exploitation of economic rights depend on the type of work and are classified into two groups (Дабовиќ Ј., Пепељугоски В., 2006 p.131). The first group includes the economic rights related to use of copyright work in the physical (tangible) form as: the right of publication, the reproduction right, distribution right, right of rental and lending right (Law on Copyright and Related Rights of the RM, article 1), while the second group are works that are used in ethereal (intangible) form such as public exposure and public communication (Law on Copyright and Related Rights of the RM, article 1).
The first category of property rights is recognized as the author of architectural works have minor importance, given the fact that the distribution right is exhausted by first sale or other transfer of ownership of an original or copy of the architectural work of holder law. Simultaneously, the author of this architectural work have loss of money-rent as a way of accomplishing the economic benefit and the right to borrow, which corresponds to the semantic nature of these offenses (Law on Copyright and Related Rights of the RM, article 27 and 36). This is in accordance with Directive 92/100/EEZ.
The economic exploitation of architectural works is carried out in ethereal form and of particular importance to public exposure and public display as a kind of public announcement. Public exposure, according to the Macedonian Law means: public presentation of an original or copy of a work of art, specifically a work of architecture, urbanism and other work of scientific and technical nature, while the public announcement is through presenting technical means of work in the field of art, architecture, urban planning, applied as a work of scientific and technical nature.
More recently a new (third) category of rights is added, known as the author of "other rights" that are characteristic of the economic and moral rights of the author, but can not be subordinate in neither of the above two categories of copyright . These rights of the author recognizes the right of free access to the original or a copy of his work, the right of resale and the right to compensation. Significant for architectural work is the right of access to the original or a copy of his work, when the author requires processing of the copyright act. The author can not renounce this right, nor has it with him or be subject to judicial enforcement.
When it comes to processing the architectural work and the relationship between ownership and copyright, the Macedonian legislator predicted: If the owner of an architectural structure intends to modify that work he shall be obliged to offer that modification prior to the author of the original work if he is alive and available in a customary manner (Law on Copyright and Related Rights of the RM, article 37 paragraph 1). In case, If the author unjustifiably refuses the offer, the owner of that work has gained the right of modification, but, however, he shall be obliged to respect the author's moral rights (Law on Copyright and Related Rights of the RM article 37 paragraph 1), This legal decision, the Macedonian legislator addressing the conflict between ownership and copyright are determined to give primacy to copyright.
If the owner of the original of the copyright work, assumes that the author has an interest in its preservation, he shall be obliged not to destroy such original before it was offered to the author, and the author shall be obliged to pay the value of the economic which the original has been made from (Law on Copyright and Related Rights of the RM article 38 paragraph 1). In that connotation, when the copyright work is an architectural structure, the author shall have the right to take photographs of the work and to be enabled access to make a cartographic record of it, that is to make a measurement survey of the structure, and to demand the delivery of photocopies of designs at his own expense (Law on Copyright and Related Rights of the RM article 38 paragraph 2).
Outlined above, it can be concluded that the study of normative and theoretical aspects of economic and moral rights is essential, as the interests of the author of the architectural work and for the rights holder.
LIMITATION OF THE ECONOMIC RIGHT’S
Very important for determining the legal treatment of the architectural work in the legal system of the Republic of Macedonia is the issue of limiting the economic rights over that achieved balance between the interests of the author and some of the general interests of society.
This issue is governed by two institutions: legal and free use permits.
Legal licenses represent lawful use of copyrighted work compensation, which means that it is necessary to seek approval for use of copyright work, but it is inevitable to pay royalties for its use. Considering the social interest, Macedonian legislator on account of the author's interest, in Article 40 stipulated that It shall be permissible by Law using a copyright work of architecture for teaching and non commercial purposes. Also, macedonian legislator in Article 42 stipulated that legally permitted reproduce the copyright work, up to three copies by a natural person for private use, for purposes not commercial, either directly or indirectly. Reproduction of architectural object is not addressed in scope of all work, unless the law or agreement provides otherwise. This legal decision is fully in line with Article 10 paragraph 2 and article 10-bis, paragraph 1 of Directive 2001/29/EC and BC and 93/83/EEZ.
Unlike the law permits the free use as a second limitation of substantive law is a lawful use of copyrighted work without charge and is aimed at acquiring informations of general significance, for teaching purposes, for private and other individual reproduction, quotation and other cases.
According to the article 46 of the macedonian law on copyright and related rights, reproduction of an architectural object, provided that it is not in full scale, up to three copies without a commercial purpose is free when it is done solely for scientific purposes, to the extent justified by the purpose of the use and utilization by persons with disabilities, provided that use is directly related to their needs.
Reproduction of a copyright work, with non commercial usage, if made in not more than three copies, shall be free for internal use by public institutions (archives, libraries, film-archives and cultural, educational, scientific and similar institutions) conditioned for the reproductions to be made from their own copy or copy of another related institution for the preservation and protection work. Reproduction does not apply for full-scale architectural object.
Furthermore, the macedonian legislator in Article 54 allows free use for building or architectural drawing or plan on when the facility is needed for its reconstruction. This legal decision is understandable considering the importance of protection of old and valuable buildings.
CONCLUSION
Specifics that has the architectural work, not only in terms of art but also in relation to other works impose require separate legal regulation. In this regard, the determination of the Macedonian legislator is to isolate the architectural work as independent kind of work from other works. Although it is more than clear that the intention was to isolate as a separate architectural work, he did not provide specific provisions governing its legal treatment in the Macedonian legal system.
However, our legislator, trying to strike a balance between the the author's interests and the interest of the holder of the rights of the architectural work, envisaged provisions undoubtedly resolve this issue.
The fact that the Macedonian copyright law is in the spirit of the European integration process, and the issue of limiting the economic rights in full compliance with international sources of law, which closely regulate this issue.
References
- Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886, completed at PARIS on May 4, 1896, revised at BERLIN on November 13, 1908, completed at BERNE on March 20, 1914, revised at ROME on June 2, 1928, at BRUSSELS on June 26, 1948, at STOCKHOLM on July 14, 1967, and at PARIS on July 24, 1971, and amended on September 28, 1979;
- Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property;
- Gliha I. “Prаva na autorskim delima nastalim u radnоm odnosu i po narudzbi” Zbornik PFZ, Poseban broj, 2006;
- Goldstein P. International Copyright: Principles, law and Practice, Oxford University Press Inc., New York, 2001;
- Jaric M: Industriska svojina i autorsko pravo, Beograd 1973;
- Lewinski S., Works created under employement contract, zbornik Hrvatskog drustva za autorsko pravo vol. 5,2004.
- Law on Copyright and Related Rights (Official Gazette of Republic of Macedonia No 47/96; 3/98 ; 98/02; 4/05, 23/05 и 23/05).
- Rome Convention, 1961, (International Convention for Protection of Performers, Producers of Phonograms and Broadcasting Organizations), Done at Rome on October 26, 1961,Official Gazzete of the RM-MD, no.50/97.
- Дабовиќ Атанасовска Ј., Пепељуговски В.: Авторско право, Правен Факултет „Јустинијан Први“, Скопје, 2006.
- http: //www.artuntitled.com/pgextra/workhire.html, 11.09.2009.