Gingerbread for the people. Legal foundation for a free culture and science
Throughout 2013 and 2014, the legislator showed us his insatiable paternal desire to take care of all of us, taking regulatory measures to ensure the information security of our children, and at the same time adults. Throughout the year, an unthinkable number of times the federal law “On Information”, “On Communication” and “On Media” was edited. In pursuit of virtual pedophiles, terrorists and drug dealers, the State Duma deputies did everything possible to expand the list of prohibited information, as well as to establish new rules for the civil circulation of information in the Russian segment of the Internet.
Media lobbyists, representing the largest American multinational corporations in the field of cinema, music and software, as well as a number of organizations serving the collective copyright management market, who appreciated the new legal mechanisms to block Internet sites, used the trend set by the government to adopt an “anti-piracy law” ver .1.0, according to which an algorithm was installed to block access to file hosting services and digital libraries, providing the possibility of unauthorized copying of materials protected by copyright. From the very beginning it was clear that this would not end there. And indeed, the law that provides for a special procedure for protecting the legal interests of copyright holders in relation to films, films, television films, looks rather strange.
Therefore, it is quite natural that after the adoption of the first version of the anti-piracy law, intensive signals began to come from different industries about the need to expand the law. Such requests came from copyright holders of works that turned out to be overboard of the “anti-piracy law”, as well as from organizations specializing in the fight against digital piracy. Thus, on July 4, 2014, the State Duma adopted in the second reading the “anti-piracy law” ver.2.0., Expanding the effect on all objects of copyright, except for photographs (this is explained by the fact that there are no societies for the protection of the rights of photographers lobbying for their interests, currently does not exist in Russia).
It's no secret that the main thing in management is the principle of alternating carrots and sticks, which was first voiced in the Middle Ages by Nikollo Machiavelli (with the need to deviate towards the carrot) and is described in detail by American social psychologist Douglas MacGregor in “Theory X and Theory Y” in 60s of the 20th century.
Perhaps the whips, beating according to the rights of users of the Russian Internet and site owners in the Runet area, have been quite a lot lately, which cannot be said about gingerbread cookies. One of such gingerbread cookies aimed at modern legal regulation of content circulation on the network in the era of instant dissemination of information is the law on free licenses , the provisions of which in the new version of the Civil Code come into force on October 01, 2014.
FIGHT FOR FREE LICENSE
The Wikimedia Foundation , the Pirate Party of Russia , the Association of Internet Publishers , the Association of Internet Users and other organizations that have constantly been tackling the topic of free licenses have made a significant contribution in order to talk about free licenses at the highest state level. In 2012, President Medvedev, as part of a civil law reform, commissioned the preparation of amendments to the Civil Code, providing for free licensing in Russia.
The result of this was the adoption on March 12, 2014 of Federal Law No. 35-FZ, amending Part 4 of the Civil Code and for the first time establishing the institution of “free licenses” in Russian legislation.
Disputes about the legal possibility of publishing copyrighted works under free licenses, according to the legislation of the Russian Federation, even before the adoption of the special Medvedev amendments, took place on the Russian Internet, but it is worth noting that, in any case, the absence of the concept of a free license in the law impeded their use due to the mandatory conditions of art. 1235.2 of the Civil Code of the Russian Federation, which regulates that non-compliance with the written form of the license agreement entails its invalidity, and therefore there is a risk of recognition of the agreement as not concluded.
FREE LICENSES - THE WAY TO CULTURAL AND SCIENTIFIC PROGRESS
Undoubtedly, free licenses providing for free copying, distribution and modification have long been a sign of good taste in the information society. The concept of free licenses first appeared in 1985 thanks to the American programmer Richard Stallman, who published the GNU Manifesto, in which he philosophically substantiated the importance of free software (software), and also criticized all the objections of commercial software manufacturers against free software. It was from this that the mass movement of free software developers began, which later spawned the free Linux operating system, as well as a large number of free open-source computer programs (from OpenOffice to mySQL). The further popularization of free licenses was due to the active work of one of the evangelists of open knowledge and culture, Harvard University professor Lawrence Lessig, who standardized various licensing conditions under the auspices of Creative Commons (CC), which are used today in more than 74 countries around the world. Authors applying CC licenses allow the use of their works by the methods specified in the license text to anyone who wishes without any additional consent of the copyright holder, payment of remuneration to him, and without any restrictions on the territory and terms. CC licenses have become the very middle ground, which is so necessary for society and authors in the era of rapid development of communication networks.
From the point of view of civil law, all Creative Commons licenses are public offers that do not require the signing of a written agreement between the copyright holder and the user of the work, as well as any special registration. The commencement of use of a work released by the author under a Creative Commons license is considered as a consequential action entailing the entry into force of this license agreement between the author and the user. However, violation of the terms of the user by the user means termination of the contract.
Free licenses are divided into permissive (giving freedom to restrict freedom) and copyleft (giving the right to free use, distribution and modification). All Creative Commons licenses are non-exclusive; rights are not alienated. To apply a license, it is sufficient for the author to explicitly indicate the name of the license so that it can be uniquely identified. It is also recommended that you provide a link to the license text posted on creativecommons.org, for a more detailed understanding of the content of the license itself. However, this is not a mandatory requirement, since the rather friendly interface of Creative Commons licenses allows authors and users to understand the essence of the license agreement without even reading its brief description. This is achieved by the fact that the main conditions of license agreements are spelled out directly in the names of the licenses themselves as a combination of basic elements. Each license may also be indicated by a letter abbreviation or as a graphic image
NOW AND IN RUSSIA
Obviously, such amendments in the Civil Code create a legal opportunity to introduce a huge array of so-called user generated content (UGC - Users generated content) into civilized civil circulation, which is becoming more and more every year. The media market (cinema, music, literature, games, software) in the information society is becoming more and more competitive, the authors have to constantly fight for the user audience, and therefore the old algorithms for distributing content to end users under proprietary licenses are becoming less popular . That is why free licenses open up wide opportunities for young musicians, developers, designers and directors to distribute their works on conditions convenient for themselves and society.
The use of free licenses can also be beneficial for the public sector, which opens up a new opportunity for deeper integration of free software into the public procurement system. Given the path set by the government to “import substitution” of proprietary foreign software, controlled mainly by American IT giants, free licenses can enable government customers to independently use and modify open and free code software without any intermediaries and expensive procurement procedures.
From October 01, Art. 1286.1 of the Civil Code of the Russian Federation, providing for the possibility of issuing open licenses for works created to a wide range of users.
Article 1286.1. Open license to use a work of science, literature or art
1. A license agreement by which an author or other copyright holder (licensor) provides a simple (non-exclusive) license to use a work of science, literature or art to a licensee can be concluded in a simplified manner (open license) .
An open license is a contract of accession. All its conditions must be accessible to an indefinite number of persons and placed in such a way that the licensee becomes familiar with them before starting to use the corresponding work. An open license may contain an indication of actions whose fulfillment will be considered an acceptance of its conditions (Article 438). In this case, the written form of the contract is considered complied with.
2. The subject of an open license is the right to use a work of science, literature or art to the extent provided for in the contract.
The licensor may grant the licensee the right to use his work to create a new result of intellectual activity. In this case, unless otherwise provided by an open license, it is considered that the licensor made an offer to conclude an agreement (clause 2 of Article 437) on the use of his work to any persons wishing to use the new result of intellectual activity created by the licensee on the basis of this work, within and on the terms provided for by an open license. The acceptance of such a proposal is also considered the acceptance of the licensor’s proposal to conclude a license agreement with respect to this work.
3. An open license is gratuitous, unless otherwise provided by it.
If the validity period of the open license is not defined, in respect of computer programs and databases the contract is considered concluded for the entire duration of the exclusive right, and in relation to other types of works the contract is considered concluded for five years.
If the territory on which the use of the corresponding work is allowed is not indicated in the open license, such use is allowed on the territory of the whole world.
4. The licensor who granted the open license has the right to unilaterally completely or partially withdraw from the contract (clause 3 of article 450) if the licensee grants third parties the right to use the work owned by the licensor or to use the new result of intellectual activity created by the licensee on the basis of this works beyond the limits of rights and (or) on conditions other than those provided for by an open license.
5. The author or other copyright holder, if the exclusive right to the work is violated by unlawful actions to provide or use an open license, has the right to demand the application of exclusive rights protection measures to the violator in accordance with Article 1252 of this Code.
However, despite the undoubtedly positive legislative phenomenon regarding the introduction of free licenses in the legal field, the legislator allowed a number of seemingly incomprehensible restrictions on their use. So, for example, article 1286.1 of the Civil Code of the Russian Federation stipulates that if a different period is not defined, then a free license is considered issued for a 5-year period. Although the design of this article, in my opinion, would have looked more logical with the wording defining that, unless the author states otherwise, a free license is considered to be issued for the entire term of copyright protection (the entire life of the author + 70 years after death).
Nevertheless, I would like to express the hope that the first step taken in the field of copyright reform will be positively used for the cultural and scientific enrichment of Russian society, and will also provide further incentive for the revision of other provisions of the copyright and patent laws, which hinder the development of modern technologies and dissemination of objects of scientific achievement and culture. Only this can give Russia an opportunity today to take its place among the strongest technological countries with competitive intellectual products oriented towards the information society, which so eagerly demands more and more free culture, knowledge and software products.