© Anatoliy FEDOROV, 2009

(«Intellectual property», №7, 2009)

Majority of violations of copyright is somehow connected with illegal copying of copyright objects. That is why, averment of copyright violation, first of all, provides determination of that fact, that counterfeit object is really a copy of original commodity. Judicial practice that has been formed till this moment requires carrying out of legal expertise on issues of intellectual property even in simple and evident cases.   Investigative practice also concedes initiation of criminal cases according art. 176 of CC (copyright violation) only in case of availability of verification of specialist’s conclusion on these issues in case papers.

If we speak about other types of legal expertise, very often the experts were put a question about identification of unknown objects in whole according to its separate available signs or human parts – according to fingerprints, transport mean – according to protector tracks.   But in determination of the fact, if a counterfeit object is a copy of original work, an expert has already received objects for comparison and the task is to determine correlation of identity between them. It is not enough only to state the availability of such correlation.  This conclusion should proceed from what is determined in the investigative part of the research.

If the research of specific  features of artistic, musical or other works is carried out by corresponding applied-research disciplines (art history, philology, others), professional conversation about correlation of identity, sameness, equality – this is a parish of logic, and a science of expertise can not determine these notions itself.

Correlation of identity (lat. identicus – identical, equal) or sameness of two objects are present when object A has each feature of object B, and object B – each feature of object A. Such important methodological conclusions concede from this:

Firstly, logic considers each thing (object, subject) as a complex of features. A “thing” – is an ontological category that is a joint name for material and ideal objects. In this respect, a work of science, literature and art is also a thing. This distinguishes philosophical category of things from the “things” in the terminology of civil law as solely material objects, to which works, certainly, don`t refer. There are no things, deprived of features, because it is “a mode of thought” but not an empiric fact.

Thus, works with the purpose of their comparison are also considered as a complex of features, which concrete character depends on the type of work. A legislator has fully apprehended this concept. For example, as copyright object it, at the same time, can be an object of patent law – industrial model. In the last case, a painting is considered as definite complex of signs (art. 5, 6, 20 of the Law of Ukraine "On protection of rights on industrial models"). Surely, not each painting can be registered as industrial model. But if a painting as industrial model is considered as a complex of sings, in this case, nothing hampers to consider any other painting as a copyright object as a complex of  signs (features), even if the Law of Ukraine “On copyright and allied rights” don`t contain such term.

One thing differs from another one just by a complex of features. This distinguishes a thing from a body which has spatial borders. This comparison is a basis of solution of paradox of Tezey`s ship. One board is changing step-by-step by another one on the old ship. At the same time it is evidently that during repair, the ship remains to be the same Tezey`s ship. But with the lapse of time, someone collected all old boards and built from them the same ship.  And now, two Tezey`s ships are in the harbour.  Paradox consists in that a thing (“Tezey`s ship” as a complex of features) is one, but bodies are different.  The fundamental question for the right of intellectual property about distinguishing of objects of IP and material objects is settled in such a way (art. 419 of CC). Spatial signs, particular to bodies (things – in terminology of CC), are not included in the list of essential signs of commodity, as “ideal” things. That is why; a duplication of a work is its copy, made in any material form (art. 1 of the Law of Ukraine "On copyright and allied rights"). A work is one, but there are a lot of its copies.

Features of a thing are significant (internal) and insignificant (external).  A thing creates a complex of internal features, absence of which results in non-existence of a thing.  As for a square, for example, this sign is “all sides are equal”. Change of external features, on the contrary, doesn`t change a thing, as a feature of a man to wear a hat. As for works, its external features, for example, are artistic value or absolute dimensions.  Differentiation on significant and insignificant features has legal meaning and for paintings that acquired a status of industrial models. An article is recognized as produced with usage of patenting industrial model if all significant signs of industrial models irrespective from volume of usage of its insignificant signs are used.

A concept that subordinates a fact of usage of industrial model in the article from the usage of all or not all significant signs in the article, is a separate case of ontological postulate about existence of a thing due to availability of complex of its features.

If, for objects of patent law, we can independently give exhaustive lists of significant features, for example, making a formulate of invention, a list of significant features of works that are protected, should be found in the object with a help of  special knowledge in a definite branch.

A second important conclusion that concedes from above mentioned notion of sameness consists in that a thing can be absolutely same by all signs, without exception, only to itself.   Any two bodies, - material objects, always differ one from other by definite signs, even it is two “same” duplicates of one and the same work. That is why their identification is possible only in a definite interval of features. On the bases of this, at the first stage of research it is necessary to digress from some signs that will not used for comparison of objects, because it will not absolutely possible to come to a conclusion about sameness of any objects. First of all, it is necessary to exclude external features of works from comparison.  Of course, a conclusion about abstracting from definite features during comparison can not be “understandable intuitively”, but should be a grounded reference to definite branch of knowledge. For example, according to the definition of the Large Soviet Encyclopedia, “A copy in plastic arts – is a work that repeats another work. A copy (especially if it is not used with a purpose of forgery) can differs from the original by its technique or dimensions, but, in contract to a cue, it should exactly reproduce a manner and composition of the original”.  In this example, technique of work implementation is an external feature, change of which doesn’t influence on qualification of other work as a copy.

From the mentioned above we can determine a correlation of sameness or identity for works: works A and B are same, if each sign of work A is inherent in work  B, and each sign of work B is inherent in work A.

It is easy to see that many forgeries or copies of original works will not correspond to so firm determination of sameness. A correlation of sameness is symmetric, i.e. if it takes place from A to B, it takes place from B to A. But a copy itself can still have features, significant to its existence, that will be absent in the original.  For example, a copied picture can be placed inh a composition along with another picture. In such conditions it is not possible to affirm that all significant features are inherent in the original. It is especially evident in the discussion about the fact if it is possible to consider three-dimensional incarnation as a copy of two-dimensional picture.

That is why we will formulate a notion “copy” more severe. A work A is a copy of the original work B, if A has all significant features of B. Execution of reverse condition is not obligatory, but is not excluded.  Depending on the fact if this reverse condition is executing or not, we can propose logical criterion of distinguishing of a notion “example” (from lat. exemplar – example). An example – is such copy, which all features, without exception, significant and insignificant, is the same to all signs of the original. Due to determination of correlation of sameness by all signs, an example can not be distinguished from the original.  On the basis of this, we can ground a correctness of thesis about the fact that three-dimensional incarnation of two-dimensional picture is its copy, as E.P. Gavrilov said, but not its example.

Unfortunately, the Ukrainian law “On copyright and allied rights”, defining the term “example of work” through the notion “copies of work” (art. 1) doesn’t determine specific distinctions of the example from other copies. It is a logical mistake in determination of notions, connected with breach of ratability rules. So, legally the terms “example” and “copy” are equal according to volume.

Correlation “to be a copy” is asymmetric (in contrast to sameness) correlation. An asymmetry of correlation “to be a copy” results in creation of definite logical order of comparison.  Comparison process should be carried out from original to copy. Symbolically this thesis can be marks in such a way:

(а R b) → (b R а)

This scheme of conclusion means that if A has definite asymmetric correlation ® to B, it results in that it is wrong that B has the same correlation to A. At the context level it means that the original fully coincides with a copy, and a copy will not obligatory coincide with the original.   Thus, as it was mentioned above, a copy can have larger set of features and can be a copy of some original works at the same time. Due to it, it would be a mistake the following thought if it is determined that work A is a copy of work B, and work B differs from work C. This thought seems correct only outwardly, but it contains a logical mistake that at the context level speaks about the possibility of work A to be a copy to some works at the same time.

These thoughts are based on the assumption that we know in advance which of the works is the original and which is a copy or other derivative work. If original and copy are mixed up by their places, logical features of asymmetric relations will result in the conclusion that a work is richer by its features.

On the contrary, in case of asymmetric correlation “to be an example” the opposite scheme of conclusion of true:

(а R b) → (b R а)

In this case, is original and copy were mixed up by their places, anyway it is possible to come to a conclusion about usage of work A in work B.  From another side, a correlation “to be a copy” and “to be an example” are transitive. Symbolically, transitivity correlation looks in such a way:

(а R b) & (b R с) → (а R с)

It means that if A is a copy of B, and B is a copy of C, A is a copy of C:

All mentioned above relative to works, refer also to parts of works. But it is necessary to make reservation such as one important logical feature of correlation of whole and its parts. Comparison of works always commence from determination of set of their significant signs.  If subsume always have all signs of subsumer (Sokrat has all features of a human), a part of object is not a type of such object and has other set of features. A head of horse doesn`t have all features of horse, and France doesn`t have all features of Europe, because is not a variety of Europe.  That is why, we can not confirm that if a work A is a copy of a part of work B, A  has all features of work B in whole. To avoid confusion with sets of work`s features in whole and its parts is possible only due to a norm about the fact that a part of work which can be used independently, is considered as a work.

All mentioned above about usage of work in whole and its independent parts allows to feel the difference between expression “reproduction of work`s part”. The last expression is polysynaptic and can speak about that  (1) only part of significant signs of work in whole is reproduced in a copy, and also that (2) all significant signs of only part of work are reproduced in a copy. In the first case, legal consequences don`t occur, and in the second one – inversely.

For avoidance of mistakes in thoughts it is necessary to determine if a notion “work reproduction” has intensity. There are features, intensity of which can change (hot, high, etc.) and  such features that have no intensity  (true, alive, etc.). Many jokes, such as “a little pregnant woman” were created on mixing of such logical types.

A copy of work always deliver original, better or less, but, irrespective of this, there are only two logical alternatives: a copy either reproduces significant features of work, or not.  It also refers to industrial models. An article is recognized as produced with usage of industrial model, is all significant features are used.  In case of absence even of one of features, an opposite conclusion is made.  That is why, a feature “to reproduce a work” has no intensity and an expression “partial reproduction” should be prevented.

The above mentioned understanding of a notion “copy” results in the fact that a copy can differ from the original very noticeably. Each of the features that comprises a set of significant signs of work, can have intensity itself.  That is why, how we can determine a border where is copy remains to be a copy of work, but is not transferred into derivative work?  The answer can be received from similarity theory. The simplest case -  is geometric similarity, which principles are used to pictures, works of sculpture and architecture. For example, similar triangles differ from each other by the length of their sides. But length of sides – is an external sign of a triangle. So, if we received another triangle by means of transformation of similarity of less (bigger) triangle, we can save its significant features. Thus, a picture B is a copy of picture A, if it can be received by means of usage of similarity transformation. The same can be affirmed and referring to musical compositions in the cases when correlations between sounds are transformed so proportionally that the original melody can be easily recognized.  Of course, it will take place in a definite interval of transformations, because quantitative change of scale can give a new quality.

But does it mean that usage of other, disproportionate transformation to a picture gives a new work, for example, if a picture is examined not in direct, but in distorting mirror?  It is already not geometric similarity, but more general case, that is studied by similarity theory.

A main task of similarity theory – is determination of variations of transformations and conditions, in which such variants are preserved. Preservation of invariance in two works will certify about the fact that one of them is a copy of another one, and its absence will certify about the fact that work transformation will lead to the creation of a derivative work.

But similarity theory works well in the spheres  that are subject to formalization of means of traditional mathematics. As for works of science, literature and arts, other, non-quantitative “mathematics” is needed for increase of correctness and proof of thoughts.  One of its variant – is the usage of general parametric system theory that is elaborated by the school of A.I. Uymov in the humanitarian sphere. A base for usage of this theory will be above mentioned logical grounds, but it is another topic.