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Vahe Sarukhanyan

Court Deprives Individual of Authorship - Then Who is the Author?

Hetq reported recently on the disagreement between programmer Hrayr Avanesyan and the Armenian Electric Networks, in particular the general director of the latter, Yevgeny Gladunchik.  Gladunchik refused to recognize the ownership rights of Avanesyan regarding the computer program called Gold.  The AEN uses this program to calculate the cost and quantity of the electricity it supplies.

When, on August 26, 2004, Avanesyan wrote to Gladunchik asking him to sign a contract with him, as the author of Gold, to rent the program, he noted, in particular, "According to Article 8 in the Armenian law regarding author's rights and associated rights, I, Hrayr Marlen Avanesyan, am considered the author of the Gold Program for the Calculation of Quantitative and Financial Flow of Electricity, used by your company without a corresponding contract…"

Gladunchik had personally signed a reply to this letter on September 17, 2004, in which it was written, "The documentation presented regarding the Gold package is not sufficient to prove your authorship of the mentioned program…"

Gladunchik had therefore said that Avanesyan was not the author of the program and when Avanesyan went to court in April 2007 asking for his 88 percent of authorship of Gold to be recognized, i.e. that he was the author of up to 88 percent of the program (an authors' agreement gave 10 percent to Gor Poghosyan and the remaining 2 percent to Gagik Margaryan), the Courts of First Instance and Appeals both rejected his case against the AEN.

The court therefore deprived Avanesyan, as well as Poghosyan and Margaryan indirectly, of their authorship.

"According to the Armenian law regarding author's right and associated rights as well as the Civil Code, authors can only be individuals, not legal entities," said Susanna Nersisyan, director of Hayheghinak (Armenian Author), an NGO protecting authors' rights, "The AEN cannot be an author, because it is a legal entity.  I did not understand whom the verdict established as the author, because if Avanesyan has been deprived of his 88 percent as author, then which individual has been declared the author?"

The expert noted that the AEN could be the legal owner of authorship rights, which is a different matter.  We should add that the AEN had used that formulation to argue its case and the court was distracted from the original petition to recognize Avanesyan's 88 percent authorship.  Before refusing the claim, the court said - based on the defendant's arguments - that Avanesyan had carried out a professional task in creating the program, which meant that the AEN was the legal owner of authorship rights.  But even in that case Avanesyan remained the author of the work.  On the other hand, the AEN did not produce any documentation which proved that it had assigned Avanesyan with the task of writing such a program.  Thus, it could not even be considered the legal owner of authorship rights.

On July 30, 2004, the co-authors of Gold, Hrayr Avanesyan, Gor Poghosyan and Gagik Margaryan had registered their work (in their own names) at the Hayheghinak NGO protecting author's rights.  The registration number was 08/375.

Even though generally, when an invention is patented the authorship is not inspected, in this case, when the three authors had submitted their work, a specific period was set aside for that purpose during which nobody objected.  Only in the fall of 2007, when the court process was already underway, did the legal entity AEN try to register its name against the number 08/375.  This was - naturally - refused, but since there had been a court verdict, the NGO director Susanna Nersisyan officially wrote to Hrayr Avanesyan, saying that the number was temporarily being suspended until the argument reached a final resolution in court.

In any case, if Avanesyan's claim is rejected in the European Court (which is unlikely, since the European Court must work using Armenian legislation, which states that only individuals can be authors) then Hayheghinak will consider the registration number 08/375 null and void.