DOI: 10.25136/2409-7136.2017.9.23950

Abstract: The idea of limitation immanently exists within law as one of social regulators of relations within society. The very fact that people should coexist, presupposes the necessity to take into account mutual interests, therefore dialectical categories of freedom and necessity and the related manifestations of freedom and limitations in law were studied by philosophers and legal theorists. The research subject of the present article is free use as an example of the institution of limitations of subjective civil rights with respect to exclusive right. The author considers the current legislation of the Russian Federation and foreign countries, legal positions of Russian courts and courts of foreign jurisdictions. The author considers the scholars’ positions on the issues of limitations of rights and title encumbrance. The research methodology is determined by the specificity of the research subject. It includes the set of general scientific research methods (analysis, synthesis, comparison). The author concludes that an exclusive right is always seen as limitless, and any limitations of right and title encumbrances (free use, exhaustion, compulsory license, prior user right and right of use after patent expiration) should be proved and can’t be interpreted broadly. Free use understanding in the legislation of the countries of Continental Europe differs from understanding in the countries of common law containing the “fair dealing” and “fair use” doctrines. However, the “fair dealing” doctrine, acting in Great Britain, Australia and Canada, presupposes the formalized list of actions, which are classified as faithful (free) use of objects of exclusive rights without author’s (or another rightholder’s) permission. To certain extent, it is akin to free use understanding within the Civil Code of the Russian Federation and legislation of other countries of Continental Europe. Besides, there’s a similarity of free use within the intellectual property institution with public easement as a limitation of property right. In this context, free use is considered by the author as a limitation of right rather than title encumbrance. 

DOI: 10.25136/2644-5514.2017.3.24111

Abstract: The countries independently at the national level define the exhaustion regime with reference to the various objects of exclusive rights. Generally, three approaches to the exhaustion principle are being distinguished: national, international and regional. The principle of exhaustion is closely connected with problem of parallel imports (re-importation), when lawfully manufactured goods are imported into the country of origin. The principle of exhaustion is the limitation on the exclusive rights and the opportunities provided by this institution in relation to the subsequent use of intellectual property objects allow considering it as the limitation similar to the “free use” cases. The subject of this research is the exceptions to copyright infringement of the author’s exclusive rights, in particular the principle of exhaustion. This article considers national and international regulatory frameworks and case law. The methodology is determined by the specifics of the chosen subject and includes a set of general scientific methods (analysis, synthesis, comparison). The main conclusions consist in the following positions: none of the subjective civil rights can be limitless, especially the one in question is fair for the institution of “intellectual property”; restrictions and encumbrance  (free use, exhaustion of rights, compulsory license, and prior and posterior user right) shall be proved and not subject to extensive interpretation.