The Soviet legislation, including copyright and the law of intellectual property rights, in general, was based on the ideological backgrounds of the Communist Party of the Soviet Union, which was defined as Marxism-Leninism. General communist attitude towards the private property is expressed most laconically in the Communist Manifesto, stating that “the theory of the Communists may be summed up in the single sentence: Abolition of private property”571. The ideology of communism challenges the whole concept of private property,
since it exists only in the relations based on the capital (capitalist society).572 Because of the
logic of historical development of the society, the private property is seen as a threat to the social order, an abolition of which is therefore inevitable.573 According to Marx, this
abolition (Aufhebung) of the private property is considered as the emancipation of human
571 Marx / Engels, Manifest der Kommunistischen Partei, p. 24. 572 Marx, Manuskripte, p. 90.
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senses and qualities.574 After this abolition the society is supposed to “take all forces of
production and means of commerce… out of the hands of private capitalists and will manage them in accordance with… the needs of the whole society”575.
As we can see, an ultimate goal of communism is to reach the ideal condition of the society (communist society) where the private property is even useless. From this perspective the communist ideology challenges not only the concept of private property, but also the concept of the law. In the Communist Manifesto the law is referred as one of the “bourgeois prejudices”576 enforced upon the proletariat. Moreover, in the same Manifesto, while
addressing the bourgeoisie, the law is defined in a following manner: “your jurisprudence is but the will of your class made into a law for all, a will, whose essential character and direction are determined by the economic conditions of existence of your class”577.
Considering this, the general concept of copyright is challenged by the communist ideology from two perspectives: first, because it belongs to the private (although intellectual) property and, second, because it belongs to the law. It is also worth mentioning, that originally copyright has been invented as a tool of censorship.578 According to Marxist view, copyright
has been created and used by early capitalism.579 Therefore the copyright, in general, is
harshly challenged by the Communist view.
The Communist society, however, is considered an ultimate goal which can not be reached at one stroke, but with the gradual transformation.580 Logically, there is a certain period to be
overcome from the capitalist to the communist society, where there is not even a need either for the private property or for the law and, accordingly, copyright. During this transformation period from capitalism to ultimate communism, according to Marx, the state
574 Marx, Manuskripte, p. 91.
575 Engels, Grundsätze des Kommunismus, p. 27.
576 Marx / Engels, Manifest der Kommunistischen Partei, p. 20. 577 Marx / Engels, Manifest der Kommunistischen Partei, p. 27. 578 Rajan, Copyright and Creative Freedom, p. 1.
579 Söderberg, Copyleft vs. Copyright, History of Copyright. 580 Engels, Grundsätze des Kommunismus, p. 26.
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should be defined as the revolutionary dictatorship of the proletariat581. However, Marx does
not describe the details of functioning of this ‘revolutionary dictatorship’, neither the practical issues, nor the legislative foundations. Therefore, after the October Revolution in 1917, the complicated task of adopting the legislation of the newly created ‘revolutionary dictatorship’ was left up to the Bolshevik leaders.582 Lenin had to define the directions of the
development before “withering away of the state”583, based on the experiences of 1905 and
1917 revolutions. He also had a practical task of adopting the legislation of the newly created state, including the numerous decrees on copyright and author’s rights protection in the years 1917-1922.584 Lenin differentiated two basic stages of communism: the first was an
immediate state following a revolution and the second was the “higher phase of communism”585 which should lead to the withering away of the state, in general. Contrary to
other Marxist theoreticians (i. e. Bukharin)586, Lenin insisted on strengthening “the apparatus
of coercion, that is, the state machine”587 during this first stage. Although the legislation is
not directly mentioned by Lenin in “State and Revolution”, it is apparent from the theoretical system of Lenin and other Bolshevik theoreticians, as well as from the practice since the revolution of 1917, that ‘the apparatus of coercion’ and ‘the state machine’ meant legal control as well.588
An obvious modification of Marxist ideals of the Communist society (if not a deviation from it) according to the practical needs of the newly created Soviet state, lately referred as Marxism-Leninism, was reflected in the Soviet copyright doctrine as well. This general legal doctrine allowed to compromise temporarily from the ‘orthodox’ Marxism, in order to strengthen the post-revolutionary Soviet state. This compromise doctrine was ‘justified’ in
581 Marx, Kritik des Gothaer Programms, p. 29. 582 Mamlyuk, p. 539. 583 Lenin, p. 121. 584 Mamlyuk, p. 538. 585 Lenin, p. 136. 586 Mamlyuk, p. 540. 587 Lenin, p. 67. 588 Mamlyuk, pp. 540-541.
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the Soviet intellectual property law complied with the following logic: “protecting intellectual property rights was indispensable to attract trade, and trade was indispensable to strengthening the Soviet state; likewise, whatever was necessary to strengthen the Soviet state was consistent with Marxist-Leninist tenets”589. Accordingly,
“the consolidation and development of the socialist economic system and socialist property, the creation of the material-technical basis for communism and the greater satisfaction of the material and spiritual needs of citizens”590 has been considered the aim of the Soviet civil
legislation, in general, and the Soviet copyright law, in particular.
Although an existence of the copyright law has temporarily been allowed for the ‘initial phase of communism’ in the Soviet Union, this law had its original character which differentiated it from the ‘capitalist’ copyright law. This difference was the following: Soviet copyright primarily had to serve to the public, instead of private interests. Namely, instead of “boosting the ego of the author…”, it had to “assure a planned growth of culture and to influence a public opinion”591. Moreover, according to Lenin, “literature and art could not be
private matters, but, rather, were a means to educate the populace into new Soviet people”.592
In other words, copyright law should serve not to the private needs of the certain author, or other owner of the copyright, but to the public needs and interests. In this regard the Soviet doctrine of avtorskoye pravo593 is so much different from the concept of ‘copyright’, as such
(which semantically and also conceptually means “right to copy” in the context of the printing press594), that it is not quite adequate to refer to it as a copyright, even in English
language. Continental European concept of ‘authors right’ (French droit d’auteur, or German Urheberrecht) is much more relevant for the Soviet avtorskoye pravo, as it emerges with the
589 Mamlyuk, p. 562.
590 The Project of the Principles of Civil Legislation of the Soviet Union and the Union Republics, Section I. 591 Levitsky, Introduction to Soviet Copyright Law, p. 15.
592 Elst, p. 11.
593 Authors right (Rus). 594 Newcity, p. 3.
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creation of the work, regardless of its registration.595 At the same time the original censoring
feature of copyright596 had been maintained and even steepened by the Soviet copyright
regime, since it differentiated the socially useful works of copyright from the works which were “socially useless” and “socially dangerous”597. Based on this, Soviet copyright legislator
aimed at the following results: first, to create a system of incentives in order to stimulate the creation of new works of high quality and, second, to establish certain legal prerequisites ensuring the widest possible dissemination of these works.598
Due to the characteristics of developing Soviet copyright law we have to differentiate the initial stage from the late phase. At the early stage, Soviet law, including copyright, was considered a temporary tool of strengthening the state before reaching the “higher phase of communism”599, or, at least, before the creation of socialist international law600. At the later
stage it became obvious that none of these occasions were predictable, at least in the nearest future, and Soviet copyright legislation had to come to certain compromises, such as the accession of the USSR to the Universal Copyright Convention in 1973 and adjusting Soviet copyright law to the UCC principles thereof.601 In the initial phase the same regime was
applied to the domestic and foreign works, while later on, after the accession to the UCC, the dual system was created which treated the domestic and foreign works differently.602
Therefore the Soviet accession to the UCC was considered a turning point of historical significance, after which USSR established reciprocal relations with over 60 nations and had to accept the international standards.603 The legal manoeuvre of adopting the UCC before the
1971 Paris amendments (which gave even more exclusive rights to the authors and restricted
595 Levitsky, Introduction to Soviet Copyright Law, p. 11. 596 Rajan, Copyright and Creative Freedom, p. 1.
597 Levitsky, Introduction to Soviet Copyright Law, p. 14. 598 Levitsky, Introduction to Soviet Copyright Law, p. 12-13. 599 Lenin, p. 136.
600 Mamlyuk, pp. 541-442. 601 Newcity, p. 44.
602 Mamlyuk, p. 564. 603 Newcity, pp. 44-45.
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licenses)604 did not help much, since the trend of being urged to accept the ‘capitalist’
international standards became inevitable.
We can observe an obvious contradiction between the orthodox Marxism, on one hand, and Leninism, lately developed to Bolshevism, on the other. According to Marxism, law605 and
property606 are the instruments of capitalism and they both have to be abolished. According
to Bolshevik practice and even theory, the state is super-strengthened and the same state is the owner-in-chief of the properties, including the intellectual property and copyright. As for the copyright, its censoring character607, claimed to be created by capitalism608, is also
super-strengthened by the Soviet state and it is harshly restrictive at the same time. Besides that, it was impossible even theoretically to exist in the ‘capitalist’ world network of law and private property without having any of them. It referred also to the copyright law, since an accession of the USSR to the UCC created numerous legal and practical problems609 and
caused historical changes610 in Soviet copyright law. Creation of a communist law and
Bolshevik legal order on the international level, or a socialist international law, which should resolve this theoretical crisis and self-contradiction611, did never happen. The prediction of
Marx and Engels of creating the communist society, or even Lenin’s prediction of reaching the “higher phase of communism”612, never came true either. On the contrary: the practice of
the Soviet state as a strict legal watchdog and owner-in-chief of the property rights, including copyright, contradicted increasingly with the ideals of the Communist society preached by Marx and Engels. Besides that, the compromises by the USSR to the ‘capitalist’ world, one of the examples of which was the reform of the Soviet copyright law for the
604 Mamlyuk, p. 564.
605 Marx / Engels, Manifest der Kommunistischen Partei, p. 27. 606 Marx / Engels, Manifest der Kommunistischen Partei, p. 24. 607 Rajan, Copyright and Creative Freedom, p. 1.
608 Söderberg, Copyleft vs. Copyright, History of Copyright. 609 Mamlyuk, p. 564.
610 Newcity, p. 44.
611 Mamlyuk, pp. 541-442. 612 Lenin, p. 136.
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accession of USSR to the UCC, became more and more obvious. Accordingly, Soviet copyright theory and law appeared to deviate from the ‘orthodox’ Communist ideas of Marx and Engels and, with this regard, become self-contradictory.