A WORD TO THE READERS
KUTAFIN UNIVERSITY CHRONICLE
EXPERT OPINION
The Author exposes various civil-law approaches to the regulation of the use of cryptocurrency. The analysis focuses on the specific features of the concepts of cryptocurrency and digital currency, the latter having been introduced by the Russian Law on Digital Financial Assets. The Russian legislation considers digital currency as ‘property’, but does not assimilate it to money or other objects mentioned in the civil legislation. Restrictions are imposed on digital currency for its use as a means of payment, but no detailed legal regime of this subject-matter is defined, despite numerous references to it in various other legislative documents.
The Author substantiates in this article the need to make adjustments to the concept of ‘digital currency’ in the Russian legislation and to categorize all cryptocurrencies as objects of civil law providing them with an independent legal regime.
VECTOR OF LEGAL SCIENCE Digitalization of the Banking Sector in Russia
Digital identity is a composite concept and includes several components: information and software and functional elements. The information element of digital identity includes a digital profile, digital image and digital footprint of the legal entity in cyberspace. This is a set of data on a specific person, which either allows him/her to be identified (“digital passport”) or presented to a certain community of persons interacting in cyberspace (“digital business card”). The software and functional element of digital identity suggests that a digital profile can be called a digital identity when it is used by the user to interact with other users of the relevant content, that is, it performs the function of a communication tool. However, for this, the digital profile and digital image of the user must be equipped with the appropriate software. Accordingly, the concept of “digital identity” includes, firstly, a set of information on the legal entity (digital profile, digital image and digital footprint), and secondly, software that allows acting in cyberspace using the downloaded information. Thus, digital identity is a way of presence of the legal entity in cyberspace and a way of remote interaction with other legal entities in the Internet World.
The article concludes that Russian legislation does not disclose the requirements for behavior that is recognized as conscientious. The issue of the criteria of good faith, as a rule, is decided by the court, in particular, such a position was expressed by the courts in relation to actions to join the sanctions, which are recognized as unfair. The article considers the practice formed by Russian courts on bringing to non-contractual liability foreign banks that refused to fulfill their transfer obligations to Russian banks due to the imposed sanctions, together with their affiliated banks that carry out banking activities in Russia. The author notes a number of legal disadvantages of such judicial practice, namely, plaintiffs choose a way to protect the plaintiff by bringing to non-contractual liability in the presence of contractual relations between the parties. The courts also use the provisions of civil legislation on proving the absence of guilt when holding accountable for unfair behavior, in which the presumption of good faith should beapplied.
The article examines the legal architecture of the digital segment of the financial market. The qualifying features of the actual mediation agreement concluded by accession are considered. The author examines the relationship between the operator of the information system in which digital financial assets are issued and the users of such a system, operators of digital financial asset exchange and its users. The article also describes the problem of isolation of various information systems and suggests one of the possible ways to resolve the problem of low liquidity of the digital financial asset market. Particular attention is paid to new types of digital financial assets, in particular, digital financial assets that can be issued in one information system and accounted for and circulated in another are considered. The author pays attention to the so-called “stablecoins”, which in Russian law are qualified through the concept of foreign digital rights. At the same time, the author notes that foreign digital rights can be any property that is issued in information systems organized in accordance with Russian law.
The article is devoted to the study of the impact of sanctions on the state of protection of the rights of consumers of financial services in Russia. The author proves that sanctions necessitate the adaptation of legislation and the banking system to maintain its financial stability and protect the rights and interests of consumers of financial services. The article considers measures of state support, as well as legislative decisions adopted for these purposes, affecting the indebtedness of citizens and the right to dispose of deposits in foreign currency. The impact of sanctions restrictions on the provision of digital financial services is revealed. The author proves that the measures taken by the legislator and the Bank of Russia can be assessed positively, since, firstly, they allowed maintaining financial and price stability, and secondly, ensuring the stability of financial institutions and their ability to provide basic financial services to citizens, despite the imposed sanctions. The author proposes a number of measures to further improve the system of protecting the rights of citizens in the financial market under the current restrictive measures.
In the context of the rapid digitalization of economic relations and the emergence of new forms of property rights, the question of the applicability of traditional legal institutions to digital assets is of particular relevance. This study is devoted to a comprehensive analysis of the possibility of spreading the institution of a bona fide acquirer of digital assets on the contrary. The paper provides a detailed comparison of the legal nature of traditional objects of civil rights and digital assets, examines the technological features of blockchain systems, analyzes the economic and legal consequences of the potential application of this institution to digital assets. Based on the conducted research, a reasonable conclusion is formulated about the inexpediency of extending the regime of fair purchase to digital assets and alternative mechanisms for protecting participants in digital property turnover are proposed.
VECTOR OF LEGAL SCIENCE Transformation of Copyright in the Digital Age
The article considers the problem of decreasing requirements to the creative level of a work and its originality as a consequence of the general crisis phenomena of modern civilization. It is proposed to recognize the realities of modern copyright and to consider as the basis of legal protection of a work its demand by third parties. The question of substitution in business practice of a trademark by a work with a reduced level of creativity as an abuse of right in the form of circumvention of the law is considered. Disagreement is expressed with the practice of protecting the rights to a work by means intended for the protection of a trademark. The opinion is expressed that the compensation for the crisis phenomena in copyright law (lowering the requirements for the level of creativity) should be an increase in the requirements for the distinctiveness of the trademark. In the development of the concept of demand for a work as a basis for its legal protection, it is proposed to allow, subject to the independence of their creation, the recognition of two similar works based on the same source information as independent objects of copyright without establishing the priority of one of the authors.
The article analyzes such an absolute ground for refusal of a trade mark as a contradiction to public interests, principles of humanity and morality. It is enshrined in the Paris Convention for the Protection of Industrial Property and, as a result, is found in various legal systems. The article provides approaches from the Russian, European, English, and American legal systems, and offers general approaches to assessing trademarks. The author identifies three different groups of cases in which this basis is applied and shows the rules by which trademarks should be considered for each of them. Contradiction to public interests, principles of humanity and morality is considered taking into account specific examples, including in the field of cryptocurrencies. Examples are given from the practice of courts and patent offices of different countries and it is shown that, in general, the world has approximately the same idea of which signs are acceptable and which should not exist.
Digital transformations have led to the emergence of new worlds. The convergence of physical and virtual space that mimics reality has been dubbed the metaverse. The possibility of reproducing reality, including social relations, in another, disembodied world has given rise to many legal puzzles: about (quasi)subjectivity of digital avatars and (quasi)objectability of virtual property, the possibility of applying existing legal norms to relations developing in the metaverse, and the definition of jurisdiction. The paper substantiates that these problems are derived from the lack of theoretical and methodological support for the essence of the metaverse itself. The key properties of the metaverse as an alternative legal space include: incorporeality, potential infinitivity, transhumanism, multisensory and universalism. Through the prism of these characteristics, the article examines approaches to the construction of a regulatory platform and the establishment of limits of state intervention. As the principles of regulating relations related to participation in the metaverse, it is proposed to identify the following: the combination of a supranational and national legal mechanism for regulating relations with intra-platform regulation; the inadmissibility of regulatory redundancy; the exclusivity of state intervention; the inadmissibility of resolving intra-platform disputes in national courts.
Effective legal protection of digital solutions is an important factor in achieving the objectives of the digital transformation of society and the state. In this article, based on the identification of the elemental composition of a digital solution and correlation of the identified elements with the legal regimes of various results of intellectual activity, an approach to the need to use patent law mechanisms to protect the content element of a digital solution is formulated. The essay examines the current regulatory obstacles to providing digital solutions with patent legal protection, as well as the registration and denial of inventions relevant to digital processes. As a result of the research, the conclusion is made about the possibility of using the model of complex protection of digital solutions, combining the mechanisms of patent law for the protection of the content element and copyright mechanisms for the protection of software components and their visual representations.
On June 13, 2024, the European Union adopted a law regulating issues related to artificial intelligence. He also touched upon the issues of copyright protection. The difficulties in applying the new law are inevitably related to the problems of implementing the provisions of the existing regulatory framework regarding the regulation of copyright and related rights in the EU single digital market. Data mining for the purpose of artificial intelligence training is often associated with the need to use works and databases. In this case, there is a clash between the interests of the copyright holders of such objects, on the one hand, and the interests of the creators of artificial intelligence models and systems, on the other. EU legislation offers a solution to this problem. At the same time, it is difficult to recognize such a solution as optimal. The article examines the key provisions of this law in relation to the identified issues, as well as analyzes foreign doctrinal sources and draws a conclusion based on the results of the review.
The article analyzes the problems of using orphan objects of copyright and related rights, new legislative provisions governing the procedure for managing and using the so-called orphan or orphan works, i.e. works whose authors or other copyright holders are assumed to be unknown. The relevant provisions also apply to objects of related rights. In the context of the widespread use of information technology, the use of intellectual property on the Internet, as well as the continuing circumstances of uncontrolled publication of works, the problem of using and legally protecting orphan objects of copyright and related rights is of particular importance. In this context, it seems important not to upset the balance of public and private interests (the interests of authors and other copyright holders) when establishing a legal regime for orphan objects of copyright and related rights. The authors formulated a scientific position and a number of provisions on various aspects of the use and protection of orphan objects of copyright and related rights.
Increasingly, artificial intelligence technologies have begun to be used to create videos and short videos on social media. These technologies allow you to quickly and efficiently recreate even the latest works using deepfake technologies. At the same time, there is no single approach to determining the legal nature of such objects in legal literature and judicial practice, and the question of the protectability of such results arises. The author analyzes foreign experience and gives examples of the latest disputes on the protection of new forms of audiovisual works. Of particular scientific interest is the identification of the criteria for the protectability of such audiovisual works, since other results of creative activity were used in their creation without the consent of the author or copyright holder. The article discusses various approaches to the legal qualification of the free use of audiovisual works created using artificial intelligence.
The article examines certain manifestations of anthropocentrism in intellectual property (IP) law from the standpoint of the general theory of authorship, including in connection with the development of neuro-information technologies.
The article traces the paradoxical nature of the dominant ideas about the intangible nature of IP objects and concludes that they combine the information nature and the creative principle inherent only in human activity. It substantiates the attribution of authorship rights (In a broad sense) to human rights. Author's creativity is analyzed as an activity motivated by intangible (moral) and material (property) interests inherent only to humans. The following classification of IP rights is proposed: a) authors’ rights (In relation to works, inventions, industrial designs, selection achievements, etc.), b) performers’ rights (In relation to the results of performing activities), c) producer or entrepreneurial rights (In relation to audiovisual works, phonograms, databases, broadcasting of television and radio companies, means of individualization, works made public after their transition to the public domain, etc.).
It is difficult to overestimate the importance of art in human life. This is a unique sphere of life, where the author reflects his emotional perception of the world in the works he creates. The development of computer technology has transformed the field of art, giving creative individuals extraordinary opportunities. The creation of generative artificial intelligence marked the beginning of cooperation between humans and neural networks. However, is the future of art, which is now created not only by creative individuals, but also by machines, so cloudless? How should the result of such cooperation be determined, who is the owner and what rights to it? Can this result be classified as a work of art? The article examines the legal problems that have arisen as a result of the use of generative AI, as well as ethical problems, the solution to which depends on the future of creative people.
VECTOR OF LEGAL SCIENCE. Legal Practice
This article contains the main issues related to the co-ownership of an exclusive right on intellectual property. The author considered the regime of co-ownership of the exclusive right and the question of its correlation with other regimes of common property, including the regime of the common property of spouses, the applicability of the norms of Part Four of the Civil Code of the Russian Federation or the Family Code of the Russian Federation to the relations of spouses-owners of the exclusive right to the results of intellectual activity and means of individualization. The article notes the peculiarities of the use of the work by co-authors. The author of this article investigated the order of disposition of the exclusive right, which belongs to several persons, as well as the consequences of concluding a contract with only one of the co-owners. The article presents different points of view on the possibility of formation of shares in the exclusive right and their disposal, reflects the difficulties of collecting compensation in favor of co-owners, foreclosure of the exclusive right owned jointly by the debtor and another person.
SCIENTIFIC RESEARCH
Relevance: the need to introduce innovative means of identifying and preventing terrorist threats is dictated by the acceleration of the pace of technology development and their adaptation to commit crimes of extremist and terrorist orientation. Unmanned aircrafts are used by terrorist organizations to obtain information about objects on the ground in order to plan attacks, deliver goods and as a direct means of attack. The use of UAs by the Ministry of Internal Affairs is sufficiently regulated by current legislation, however, the issues of equipping UAs with artificial intelligence are only indirectly reflected in regulatory legal acts. Improving the legal regulation of the use of UAs with AI in this context is necessary for the speedy implementation and effective use of these funds by the Ministry of Internal Affairs.
Problem statement: The use of AI on UAs technology to automate the work of in the context of preventing terrorist threats is limited due to the insufficient development of the regulatory framework governing the use of such technologies.
The purpose of the study: to compile a list of recommendations for improving the legal regulation of the use of UAs with AI in the context of preventing terrorist threats.
Research methods: structural and functional analysis, system analysis, comparative legal analysis.
Results and key conclusions: As a result of the study of the regulatory framework governing the use of UAs and AI technologies in the framework of activities to prevent terrorist threats, key problems were identified and measures were proposed to improve a number of regulatory legal acts.
The wave of artificial intelligence is sweeping across China, constantly causing important changes in all spheres of social life, and legal education is no exception. The scientific and rational utilization of artificial intelligence technology system in legal education is directly related to the qualitative development and leap in the level of legal education in China, and has an important influence on the international competitiveness of Chinese legal education. By exploring the significance of artificial intelligence for the deepening of Chinese legal education, and then considering the future practical direction of legal education in the era of artificial intelligence, particularly discussing the integration and deepening of artificial intelligence in teaching mode, teaching quality control, curriculum content construction, etc., it is emphasized that Chinese legal education should take the initiative to meet the technological changes brought about by artificial intelligence.
TRIBUNE FOR YOUNG SCIENTIST
The article analyzes the legal nature and features of the application of a pledge of rights to a bank account as a way to secure obligations. Changes in the civil legislation of Russia that legalized the possibility of using non-cash funds in bank accounts as a subject of collateral are considered. The author pays attention to historical and current problems of law enforcement, focusing on legal conflicts and judicial practice. Particular attention is paid to the mechanism for the emergence of the right of pledge, its accessory nature, as well as the transformation of the subject of the pledge from property rights to rights under a bank account agreement. As a result of a systemic analysis of legislative norms, recommendations are proposed for improving legal regulation and minimizing credit risks associated with the use of a pledge of rights to a bank account.
The article examines the current practice of implementing experimental legal regimes (ELRs) in Russia as a method of regulation aimed at fostering innovation in the digital economy. It focuses on analyzing the theoretical aspects of ELRs and their differences from other legal tools, such as regulatory sandboxes. The importance of creating a favorable legal environment to stimulate economic growth and the introduction of innovative technologies is emphasized. The author identifies key features of ELRs, including time limitations, monitoring of results, and increased safety requirements. The author explores domestic practices of ELR implementation, evaluates the advantages and disadvantages of legislative regulation, and provides examples of successful and problematic aspects of these regimes in Russia. In conclusion, the potential effectiveness of ELRs in accelerating innovation and optimizing legal regulation is highlighted.
In this research, the author analyzes the history of the development of monetary circulation from a legal point of view. The author concludes that there are no necessary changes in doctrinal approaches and regulation policies related to the transition from full-fledged forms of money to incomplete ones. The author examines the legal regimes within which various forms of the national monetary unit, the ruble, are regulated, and demonstrates the presence of a significant number of contradictions in the current legislation and the current doctrine. It is concluded that it is advisable to allocate an independent object, money, in the list of objects of civil rights presented in Article 128 of the Civil Code of the Russian Federation, and to form a separate legal regime for this object, which has an absolute nature.
One of the contracts through which Islamic consumer finance can be implemented is Ijarah Muntahiyah Bittamleek (IMB). This contract is regulated by Instruction No. 224 and Sharia Standard No. 9 of the AAOIFI. The regulatory requirements specified in these documents, especially in Instruction No. 224, are quite difficult to understand. This is due to the fact that this contract, although analogous to traditional financial leasing, differs from it in many respects. Key factors are also the terminology, legal nuances and complexity of the processes specified in the documents. For these reasons, today the concept of IMB has not yet been fully disclosed in the traditional legal doctrine, which necessitates its deep understanding.
The article examines the procedure for implementing the IMB contract, including the procedure for transferring/transferring ownership of its subject, and identifies four types of this contract.
LAW IN HISTORICAL REFRACTION. Some Pages of the Past Periodicals
POST SCRIPTUM
ISSN 2782-6163 (Online)