In modern society, legislation is being created in an area that was difficult to imagine a century ago. The widespread use of electronic computing has made it possible theft of intellectual property.
A hundred years ago, in order to appropriate other people's thoughts, it was necessary to steal the manuscript and drafts of the works. With the development of the global network and cloud storage technology, the task has been simplified many times. Today, in order to steal information, it is possible to hack one of the author’s electronic devices remotely from another end of the world and copy the desired file in a split second.
Legal regulation in the field of copyright and intellectual property is becoming more relevant than ever.
Copyright concept
Since 2008, copyright issues have been regulated by the Civil Code of the Russian Federation. According to article 1255 of the 4th part of the Civil Code of the Russian Federation, copyrights are intellectual property rights to works of science, literature and art. The authorship established by the following rights:
- personal non-property rights (name, promulgation right, protection);
- exclusive rights of use that allow you to allow / prohibit the use of intellectual property to third parties, regardless of the purpose of such actions (Civil Code, Article 1270);
- the right to remuneration, when the author himself decides to distribute his brainchild for free or for payment (Civil Code, Article 1245).
The concept of intellectual property
There are slight differences between intellectual and copyright, but in general the concepts are the same.
Intellectual rights extend to the results of human intellectual work and means of individualization (the allocation of goods from the mass of similar ones is a concept from the field of marketing).
Intellectual law recognizes the owner of personal non-property and exclusive rights. The following right is also provided — the opportunity to receive interest from the resale of exclusive rights at a price many times higher than the purchase price from the original copyright holder, and the right of access — the moral right of the author to demand that an author's copy be made for personal use.
Is the software subject to intellectual or copyright law?
Article 1261 of the Civil Code of the Russian Federation defines a program code as a certain set of data and commands for the operation of computer devices and the achievement of tasks.
It should be noted that the program is an algorithm written in a formalized programming language in which there are their own norms and rules. From the point of view of the law, software (software) is equated to literary works.
The rules of both copyright and intellectual law are equally applicable to software. From a legislative point of view, they can be equated with rights to intangible property.
Copyright and intellectual property rights can be claimed on the following parts of the software:
- source and object code;
- materials created specifically for software (screensavers, design and audio);
- materials obtained in the process of creating software, preparatory and intermediate calculations.
Copyright Protection
The creator can publicly declare his authorship, ask to indicate his name in the appropriate section, distribute his work for free or for free,demand to prohibit the distribution of its intangible property by third parties or, conversely, to allow it.
Authorship begins at the time of creation of the property, and protection of ownership is possible from the moment of registration of copyright. In the case of software, intellectual property protection is possible after the registration procedure of the software or the created database.
The regulator in the field of intellectual property is Rospatent - the Federal Service for Intellectual Property.
If copyright or intellectual property rights are officially established, the copyright holder may apply to the court for protection. Otherwise, it will be necessary to first prove authorship, and only then demand restoration of rights.
If a person decides to earn money by selling the result of his creative or mental work, it is imperative to officially secure authorship.
What is a non-exclusive right?
The wording of the Law of the Russian Federation of 09.07.1993 N 5351-1 “On Copyright and Related Rights” featured the concepts of exclusive and non-exclusive rights. After the concept of intellectual property was translated into the Civil Code of the Russian Federation in the expression “non-exclusive rights of use” in 2008, the derivatives associated with it became a relic, and their use is contrary to the legislation of the Russian Federation.
Changes to the Intellectual Property Law of 2008
According to the Civil Code of the Russian Federation, instead of the "copyright agreement", the copyright holder may conclude an agreement on the alienation of rights. Accordingly, the concept of a “non-exclusive right agreement” becomes irrelevant.
Under an alienation agreement, the author transfers to the buyer his exclusive rights in full and for the entire period of his protection, leaving only inalienable rights - personal non-property. In this regard, since 2008, the transfer of non-exclusive rights to software has become impossible.
The second type of agreement that the copyright holder can conclude is a license agreement. Under this agreement, the buyer acquires a non-exclusive license to use the software product with restrictions. These restrictions may apply to the duration, territory and method of use. Based on this, the concept of "acquisition of non-exclusive rights" also goes into oblivion.
Non-exclusive Software License Agreement
So, instead of granting non-exclusive rights in modern legislation, it is possible to provide a non-exclusive license for software.
By purchasing a boxed edition of the software, the buyer, in fact, concludes an offer to receive non-exclusive license rights.
License agreements are concluded between two authorized representatives of legal entities when the distribution package is distributed free of charge and has functional limitations. In order to use the software in full, you must purchase a license to use intangible property from the owner.
A non-exclusive license almost always has restrictions on time (concluded for a certain period of time), territory and methods of use. Violations of the license agreement have legal consequences. The exclusive copyright holder of the software has the right to judicially demand compliance with the terms of the contract, terminate it and reimburse all losses incurred as a result of illegal use of the software.
International Copyright Practice
The Russian Federation has undertaken obligations under two international acts in the field of copyright protection:
- Universal Copyright Convention of September 6, 1952.
- Berne Convention for the Protection of Literary and Artistic Works on July 24, 1971.
None of the texts mention software.According to Russian law, computer programs are equated with literary texts; therefore, they are subject to international acts.
The Berne Convention provides for a specific time period for copyright protection - from 50 years. It also describes the principles of assimilation, national, territorial and automatic protection. In general, the essence of the convention boils down to the mandatory protection of the rights of authors, regardless of the citizenship of the author, the place of first publication of the material and compliance with some minor formalities.
The World Convention is not so jealous of copyright and allows member countries to move away from the requirement of automatic protection, that is, to demand strict compliance with copyright rules.
Intellectual Piracy
Intellectual property piracy is the scourge of the 21st century. At a certain period, music, books, films and programs roamed the vast expanses of the World Wide Web without any restrictions and fees.
The opinion of the society on copyright issues was divided. Some consumers believe that the requirement to pay for intangible property is the legal right of the author. Others do not consider the use of illegal free copies to be theft. The argument given by this group is rather weak.
Even statistics sometimes show conflicting results. For example, in the UK, it has been found that pirate users spend on average 50% more on legitimate content than those who never steal intellectual property.
Studies show that legitimate ways to combat virtual piracy are ineffective. Users who illegally use programs and other content have more choices and are ready to financially support the author of the product they like by acquiring a license.
