In 2005 an attorney of Klishin & Partners was approached by Ms. G. (she asked to keep her name secret), daughter of a famous poet who fought as a volunteer in the Great Patriotic War and died of after-effects of severe injury a few years after the Victory.

On the eve of the anniversary of the Great Victory many publishers deemed it expedient to release the works of the authors who had been the direct participants of that war. The poetry of Ms. G.’s father turned out to be n demand by the publishers.

Ms. G. has been the only legitimate heir after the death of her father. None of the publishers had any doubt that she was the one to inherit the poet’s copyright. However, Ms. G. did not have the inheritance certificate in respect of her father’s copyright. In spite of this fact, some publishers asked for a written permission from Ms. G. to publish her father’s poems.

Ms. G. asked the attorney for assistance in the formalization of her inheritance rights to her father’s copyright.

The result of the attorney work was the fact that after the period of almost half a century Ms. G obtained the inheritor status and received the inheritance certificate for her father’s copyright.

Copyright inheritance is directly stipulated by Article 29 of the RF Law «On copyright and neighboring rights». It should be noted that the copyright to not only specific published or unpublished works are inherited, but to any and all works created by an author.

Under p. 1 of Article 9 of the foregoing Law, «copyright in a work of science, literature or the arts shall arise due to the fact of its production. There shall be no need to register or otherwise specially formalize the work or observe any other formalities for copyright therein to arise and be exercised.».

But what about the inheritance of the copyright of the poet who died in the 1950s? Why Ms. G. did not have any adequate proof of her inheritance right up to now?

Initially the attorney considered resorting to court on behalf of Ms. G. with an application to renew the term set for the acceptance of the inheritance and justifying the application by the fact that at the time of her father’s death Ms. G was a small child and was therefore unable to formalize her inheritance right individually.

Moreover, major changes have been taking place in the copyright laws from the day when Ms. G’s father died up to now. In some periods the copyright held by her father was effective, in some periods it was not. Consequently, in these periods of copyright «standstill» the heiress had no grounds for claiming her rights therefor.

The initial instrument in effect was the RSFSR Civil Code of 1964 where Article 496 stipulated that «copyright is effective during the lifetime of the author and 25 years after his or her death, beginning on January 1 of the year that follows the year of his or her death», i.e. after 25 years from the date of the death of Ms. G’s father his copyright ceased to be in affect and could no longer be inherited.

The RF Law «On copyright and neighboring rights» was adopted in 1993. It prolonged the copyright effect to 50 years after an author’s death, and in 2004 this Law was amended so as to prolong such effect to 70 years.

Under Part 1 of Article 1152 of the RF Civil Code (hereinafter the RFCC), to acquire inheritance a heir must accept it. Methods of inheritance acquisition are defined in Article 1153 of the RFCC: «An inheritance is accepted by means of the heir's filing an inheritance acceptance application or an application for a certificate of the right to the inheritance with the notary or personal representative under law at the place of opening of the inheritance». However, the an inheritance may be accepted within six months as from its opening, and the day of inheritance opening is the day of an individual’s death (Articles 1154 and 1114 of the RF Civil Code respectively).

The six-month period established by the law for inheritance acceptance expired half a century ago. Could the term for the inheritance acceptance be re-instated in this specific case?

The Attorney came to a conclusion that the provisions of Article 1155 of the RF Civil Code on the grounds for the re-instatement of the inheritance acceptance term are not fully applicable in these circumstances, since the law allows to re-institute such term «if the heir did not know and was not supposed to know of the opening of the inheritance or if the heir has missed the term due to other legitimate reasons and on the condition that the heir who missed the term set for acceptance of the inheritance has filed his/her application with the court within six months after the time when the causes/reasons for the lateness ceased to exist». In this specific case the term was missed for valid reasons, but the legally established six-month period had expired long before Ms. G. realized that these reasons ceased to exist.

Having analyzed the provisions of the existing legislation and examined all relevant documents in Ms.G’s possession, the Attorney decided to file an application for the establishment of the fact of inheritance acceptance with the court of her client’s jurisdiction with reference to p. 9 of Part 2 of Article 264 of the RF Code of Civil Procedure. The application (and the enclosed documents) referred to the facts that Ms. G. used her proprietary rights that followed from her father’s copyright, gave written permissions for the publication of his works and received royalties.

In the court the attorney proved that under Part 2 of Article 1153 of the RF Civil Code Ms. G. had actually accepted the inheritance, i.e. acceded thereto and to the management thereof.

The Court fully supported the attorney’s position and in July 2005 it passed a judgment on the establishment of the fact that Md. G. had accepted the inheritance, i.e. her father’s copyright.

Having received the res judicata court decision, Ms. G. hoped to individually address a notary in order to obtain the inheritance certificate. In fact, the heiress met some insurmountable obstacles – the notary of the place of inheritance opening (the testator’s last place of residence) simply rejected the documents.

In 2007 г. Ms. G. asked the same attorney for assistance.

The attorney accepted Ms. G.’s instruction on legal assistance and obtained the relevant power of attorney from her.

Initially the attorney had to determine the notary to whom she could apply for the inheritance certificate.

At present any citizen of the country may apply for the formalization of its inheritance rights not only to the notary of a place of his or her inheritance opening, but to any other notary within one notarization area (Moscow in this particular case) vested with the authority to handle inheritance matters in accordance with Order № 187-n of Moscow Department of the Federal Registration Service dated 01.07.2005.

The right to resort to any notary is vested in Article 13 of the Fundamentals of the Legislation of the Russian Federation on the Notariate: «Every citizen is entitled to apply for notarial services to any notary». As follows from p. 4 of Article of the Law of the City of Moscow № 6 «On the arrangements for and the activities of the notariate» dated 19.04.2006, «an individual is entitled to apply for notarial services to any notary of the City of Moscow».

However, the foregoing Order № 187-n that significantly expands the list of notaries authorized to handle inheritance matters makes a reservation under which such notaries can issue inheritance certificates only in respect of inherited property of the citizens who died after 31 July 2005. But Ms. G.’s father died more than 50 years ago!

Prior to obtain a clear response to the question on the specific notary to whom the application for the issue of the inheritance certificate to Ms. G. the attorney had to apply more than once to the Moscow Department of the Federal Registration Service and to the Moscow Chamber of Notaries.

The attorney found out that in this particular case she had to go to the notary in charge of the safekeeping of the files of the state notary office of Moscow which was entitled to issue the inheritance certificate in the year of the testator’s death at his last place of residence. At that time Moscow’s First State Notary Office was the office in question.

In the Section of Legal Control and Supervision over Advocacy and Notariate of the above mentioned Department the Attorney obtained the data attesting to the fact that Notary R. had been appointed as the notary in charge of the archives of the First State Notary Office compiled in the period that included the year of the testator’s death.

But the attorney had to supply the notary with the proof of the inheritance of the inheritor at the specific address as of the date of her father’s death. In this 50-year period the name of the street where he had lived was changed and the house was demolished. The attorney had to apply to the local passport issuance department where she finally obtained an abstract from the house register attesting to the fact of the inheritor’s residence at the specific address in Moscow.

In spite of the fact that all documents required for the obtaining of the inheritance right certificate were prepared, notary R. refused to accept an application for the issue of such certificate. In his opinion, the certificate was redundant since the court had passed a decision to establish the fact of inheritance acceptance by Ms. G. Notary Р. stated that this court decision in itself served as the reason for acceptance of Ms. G.’s inheritance right by all parties concerned. In making this statement the notary made references to Article 268 of the RF Code of Civil Procedure and Article 8 of the RF Civil Code.

The attorney was sure that the approach of this notary was erroneous.

Court decision on the establishment of the fact of inheritance acceptance is an indisputable proof of an inheritor’s title to the accepted inheritance. Certificate of the right to the inheritance in respect of copyright serves as the title document therefor.

Acting in support of her position, the attorney made an inquiry with the Russian Authors Association and received a written reply: «Users (in other words, publishers) perceive an inheritance certificate as a proof of the fact that the inheritors are in possession of the relevant right».

In fact, notary R. refused to perform a notarial act, although must have given the inheritance certificate to Ms. G.

Provisions of Chapter 37 of the RF Code of Civil Procedure enable the attorney to make an application to court on the refusal of notary G. to perform the notarial act in order to protect the interests of Ms. G. However, the attorney intended to settle this issue without institution any court action against this notary. And she found a way to do it.

Earlier the attorney applied more than once to S., a Moscow notary, for assistance in various notarial actions. Being well aware of excellent skills and vast experience of notary S, the attorney decided to ask him for his opinion on the case.

Having examined all pertinent documents, notary S. stated that Ms. G. is undoubtedly entitled to receive the inheritance certificate.

As a notary authorized to handle inheritance matters, S. was ready to issue the certificate, but the relevant order of the Moscow Department of the Federal Registration Service was required for the transfer of the powers to handle the inheritance case from notary R. to notary S. Only this Department was competent to address this issue. Another condition was also to be observed – both notaries must have given their consent in writing.

On a personal visit to the head of the Section of Legal Control and Supervision over Advocacy and Notariate of the Moscow Department of the Federal Registration Service the attorney has filed an application for the place of notarial deed within the Moscow Notarial District.

That meeting was preceded by another meeting with notary R. who was persuaded by the attorney to give consent to the transfer of his powers and who agreed with the text of the declaration in his name drafted by the attorney. This is how the attorney managed to fully avoid a professional and personal conflict with R. Notary S. has also supplied the attorney with his written consent.

It should be noted that the head of the Section of Legal Control and Supervision over Advocacy and Notariate of the Moscow Department of the Federal Registration Service was compassionate to the attorney in her application in favor of Ms. G. The attorney explained that the case in question was related to the idea of Victory and patriotism, so it was important for our contemporaries to familiarize themselves with the poetic heritage of Ms. G.s father upon her consent. A litigation in respect of the refusal of notary R. to execute the relevant notarial deed would delay the publication of MR.G’s poetry.

Within a very short period the Moscow Department of the Federal Registration Service issued an order on the transfer of the powers to open and handle the notarial case from notary R. to notary S. In accordance with this order, notary S instituted the inheritance case and issued the inheritance certificate to Ms. G., i.e. the copyright that had been held by her father.

Therefore, in half a century after the death of the inheritor’s father the inheritor has finally obtained the inheritance certificate.

Е. TSARAN, Attorney, «KLISHIN & PARTNERS» Attorneys at Law