We have to admit that disposition of the entities of operational management on exclusive rights, on the one hand, has no restrictions in the law according to the Fourth Part of the Civil Code of the Russian Federation, and on the other, as belonging to the property, cannot be a subject of an individual disposition due to the limitations set by the rules of corporeal rights.
It is also possible to distinguish between the exclusive rights of legal entities derived from operational management and belong to public law entities, and the exclusive rights that are owned independently by legal entities.
The Fourth Part of the Civil Code contains a general rule of the performer's on appurtenance of exclusive rights on intellectual property created at the expense and raising funds of the budget, which is provided only to the right to an integrated process (Chapter 77 of the Civil Code), as well as concerning the exclusive right to intellectual property which is created in the performance of the contract (by state or municipal contract for state or municipal needs (Articles 1298, 1373, 1432, 1464), under the contract confirmed by the c h i e f controller or budget funds disponent with federal government agencies, which implementation reveals a work secret (Article 1471). In other cases, the general rule of the Article 299, Paragraph 2 of the Civil Code of the Russian Federation, under which the results, products and income from property disposition within the operational management, as well as the property acquired by the institution upon the contract or other reasons, implies coming of operational management to the institution.
Thus, the exclusive rights may be owned by a public legal institution as a right holder or by legal entity that created by this institution. The understanding of exclusive rights as a form of property is based on the use of proprietary approach and considering the concept of property in the broadest sense, including not only items, but also property rights, which include the exclusive rights. Contrary to this approach, the norms of the Fourth Part of the Civil Code of the Russian Federation provide for the allocation of rights between public legal institution and performer, as shall include state and municipal unitary enterprises and institutions.
There are manifold ways to resolve the collision. On the one hand, it is an assignment of special provision that state and municipal unitary enterprises are not entitled to dispose of the exclusive rights assigned to them or acquired for various reasons, without the consent of the property owner, who is not a right holder.
Scientists justified proposals on the use of the mechanism of trust agreement to exclusive rights in relation to legal entities that do not possess means on property rights, and those who have property rights . There is a suggestion to introduce a limited exclusive right of state and municipal enterprises and institutions. Provided that public legal institution vests a legal entity by limited corporeal rights on material objects, for instance, creates a state or municipal unitary enterprise or institution, gives them property, these legal entities as subjects of private law, which are not property owners, should not be addressed as owners of exclusive rights, which they can vest without the consent of the state. At the same time, the above-mentioned entities would have the right to grant licenses, but not execute contracts for the alienation of the exclusive right.
This will solve the problem of simultaneous preservation of exclusive rights to the state and give government agencies the ability to use exclusive rights for civil transaction in accordance with their legal standing.
On the other hand, legal entities who are not owners of the property, can act as agents of limited corporeal rights and at the same time can have the rights to intellectual property. The Article 1227, Paragraph 1 of the Civil Code of the Russian Federation assumes that intellectual property rights do not depend on the ownership of physical media (item), which represents the corresponding result of intellectual activity or means of individualization. In this case, it is necessary to replace the term "property right" for the term "corporeal right", which means the inadmissibility of distribution on exclusive rights of state and municipal enterprises and institutions of the restrictions at behest specific to the right of economic management or operational management. In addition, on the basis of this norm, it is necessary to give an interpretation for the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 5, of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 29 on 26 March 2009 "On some issues that have arisen in connection with the introduction of the Part IV of the Civil Code of the Russian Federation" on its priority among norms regulating the property disposition, vested in the right to economic management or operational management.
At the same time it is necessary to distinguish between the exclusive right of the public legal institution, on whose behalf act as representatives the government bodies and local municipalities mainly by state enterprises, and the exclusive right belonging to the subject of limited corporeal right. Whereby the institution depending on the type can act on behalf of a public legal institution as a subject of public law, as well as serving as the subject of private law in its own name.
Indeed, it is not quite correct to identify the scope of rights of institution as a subject of public law and institution as a subject private law, as there are very few norms of the Fourth Part of the Civil Code of the Russian Federation to provide the mechanisms for implementing the rights of the state in the field of intellectual property. The exercising of the functions of the state representative by the institution as a legal entity of public law does not require the rights transfer or granting, the institution carries out the disposal of state rights by virtue of competence defined by regulations.
It is necessary to develop a mechanism for securing the rights of legal entities to use the results of intellectual activity and means of individualization while preserving them at the state, as has been done, for instance, in the Federal Law on 2 August 2009 No. 217-FZ "On amendments to certain legislative acts of the Russian Federation on the establishment of economic societies by funded research and educational institutions for purposes of practical use (implementation) of the results of intellectual activity" which states that institutions of higher education being budget education institutions, and higher educational institutions established by state academies of science have the right, without the consent of the property owner, with notification of the federal executive body responsible for public policy and legal regulation in the sphere of scientific and technological activities, as founders (including jointly with other entities) of economic societies, which activities imply practical application (implementation) of intellectual activities (PC software, databases, inventions, utility models, industrial designs, selection achievements, integrated circuits topographies, work secrets (knowhow), which exclusive rights belong to these higher educational institutions). In addition, the notification of creating the economic society should be forwarded by the higher educational institution being the budget educational institution, or higher educational institutions established by state academies of science within seven days of the entry into the Unified State Register of Legal Entities on the state registration of the economic society. Funds, equipment and other assets being on the operational management of these institutions of higher education may be introduced into registered capital of the created economic societies in accordance with the Civil Code of the Russian Federation.
Karelina, O.A. (2011), The implementation of exclusive rights by legal entity in the acquisition and termination of legal capacity: Author's thesis [Realizatsiya isklyuchitel'nykh prav yuridicheskim litsom v protsesse priobreteniya i prekrashcheniya pravosposobnosti: avtoreferat dis. … kand. yurid. nauk], Moscow, 29 p.
"On the Draft of the Federal Law No. 47538-6 "On Amendments to the first, second, third and fourth Parts of the Civil Code of the Russian Federation, as well as to certain legislative acts of the Russian Federation" ["O proekte Federal'nogo zakona N 47538-6 "O vnesenii izmenenii v chasti pervuyu, vtoruyu, tret'yu i chetvertuyu Grazhdanskogo kodeksa Rossiiskoi Federatsii, a takzhe v otdel'nye zakonodatel'nye akty Rossiiskoi Federatsii"], Konsul'tantPlyus, available at: http://base.consultant. ru/cons/cgi/online.cgi?req=doc;base=EXP;n=530622
"The Resolution of the Plenum of the Supreme Court of the Russian Federation No. 5, of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 29 on 26 March 2009 "On some issues that have arisen in connection with the introduction of the Part IV of the Civil Code of the Russian Federation" ["Postanovlenie Plenuma Verkhovnogo Suda RF N 5, Plenuma VAS RF N 29 ot 26.03.2009 "O nekotorykh voprosakh, voznikshikh v svyazi s vvedeniem v deistvie chasti chetvertoi Grazhdanskogo kodeksa Rossiiskoi Federatsii"], Konsul'tantPlyus, available at: http://base.consultant.ru/cons/cgi/online.cgi?req=doc;base=LAW;n=86879