An Exclusive Right as an Element of a Legal Relation

Abstract

The article, on the basis of the theory of imperatives and the legal relation doctrine, attempts to show an exclusive right not per se, but as the part of an absolute regulatory relationship, where the passive duty of everyone to refrain from using the protected object represents a means of securing that right. With due regard to the commonly accepted regulatory principle that "everything which is not forbidden is allowed," the author argues that the main function to enforce the interests of the copyright-holder is imposed on the passive duty. For this purpose, the interests of the copyright-holder mean prevention of any other person from using the protected piece of intellectual property. Such an approach allows to overcome shortcomings of the negative nature of an exclusive right that was considered by many scholars as the right to prohibit. According to the author, the exclusive right in its standard uninfringed state does not possess such a power. This right implies only the duty of omission to act enshrined by the law by means of general prohibition to use the object of intellectual property and imposed on all other persons except the copyright holder.