Legal aspects of using computers

    The responsible employee should have information on the legal grounds for the organization to have software rights, which will allow it to have a “foundation” when communicating with law enforcement agencies on the principle: “if everything is legal, then there is nothing to fear”.

    We have prepared for you a set of legal aspects of the use of computers, including liability provided by law, and recommendations for conducting inspections in the company.



    Definition of a computer program


    A computer program is an objective set of data and commands designed to operate computers and other computer devices in order to obtain a certain result, including preparatory materials obtained during the development of a computer program and the audiovisual displays generated by it ( article 1261 of the Civil Code of the Russian Federation ) .

    The database is a set of independent materials presented in an objective form (articles, calculations, regulations, court decisions and other similar materials), systematized so that these materials can be found and processed using an electronic computer (computer) ( article 1260 of the Civil Code RF ).

    According to Part IV of the Civil Code of the Russian Federation, computer programs and databases are included in the list of results of intellectual activity (intellectual property) that are granted legal protection ( article 1225 of the Civil Code of the Russian Federation ). The legislator from 01.01.2008 a new term was introduced - “intellectual rights”, which means the whole complex of rights to the results of intellectual activity (including software). Intellectual rights include “exclusive right”, which is a property right, as well as personal non-property rights and other rights (in cases provided for by the Civil Code of the Russian Federation).

    Initially, intellectual rights in full arise from its author, a citizen whose creative work created the result of intellectual activity. The author initially owns the exclusive right to the software, as well as personal non-property rights to the software (copyright, name, and others). Personal non-property rights of the author are inalienable and non-transferable, a waiver of these rights is null and void ( article 1228 of the Civil Code of the Russian Federation ).



    Definition and essential features of a license agreement


    License agreement - an agreement by virtue of which one party - the holder of the exclusive right to software (Licensor) grants or undertakes to provide the other party (Licensee) the right to use the software to the extent provided for in the agreement ( Articles 1235, 1286 of the Civil Code of the Russian Federation ).

    The Civil Code of the Russian Federation defines the following essential conditions of a license agreement:
    1. A license agreement must be concluded in writing.
    2. The licensing agreement should provide for the subject of the agreement by direct reference to the result of intellectual activity (software).
    3. The license agreement should provide for ways to use the result of intellectual activity (software), that is, the volume of transferred rights - as the licensee has the right to use the software.
    4. If the license agreement is onerous, you must specify the amount of remuneration for using the software or the procedure for calculating such remuneration. In the absence of conditions on the amount of remuneration or the procedure for determining it in a reimbursable license agreement, the agreement shall be considered not concluded.

    In addition to these four essential conditions, the Civil Code of the Russian Federation provides general rules on the territory and duration of the rights of the Licensee under a license agreement. According to these general rules, if the parties themselves have not indicated the territory and validity in the contract, then the Licensee has the right to use the software throughout the Russian Federation for 5 (five) years ( article 1235 of the Civil Code of the Russian Federation ).

    The Civil Code clearly defined two types of license agreements ( Article 1236 of the Civil Code of the Russian Federation ):
    Simple (non-exclusive) license - when the copyright holder, upon conclusion of a license agreement, reserves the right to issue licenses to other persons;
    Exclusive license- when, at the conclusion of the license agreement, the right holder loses the right to conclude similar agreements with other persons.

    The conclusion of licensing agreements on the granting of the right to use a computer program is allowed by each user concluding an accession agreement with the corresponding copyright holder, the terms of which are set forth on the purchased copy of such a program or on the packaging of this copy. The beginning of the use of such a program by the user, as it is determined by these conditions, means his consent to conclude a contract ( clause 3 of Article 1286 of the Civil Code of the Russian Federation ).

    Documents indirectly confirming the legitimacy of using the software


    Acceptance and Transfer Act

    In addition to the license agreement, there are other documents that can confirm the legitimacy of using a computer program. Such documents include, for example, the act of receiving and transmitting a computer program (rights to use a computer program). The act of acceptance (hereinafter referred to as the act) is a document confirming the transfer of the rights to use computer programs from the copyright holder to the user. An act can be made an annex to a license agreement. In Russian practice, there are also cases when the date of transfer of the rights to use computer programs is fixed in the license agreement, and under such conditions the acceptance certificate is not drawn up.

    However, taking into account the peculiarities of accounting, it is recommended to draw up and sign an act in order to confirm the validity of accounting operations and taxation.

    According to Russian law, a license agreement is a title document sufficient to confirm the legitimacy of using a computer program. However, during inspections by state bodies, inspectors, in addition to the license agreement, may require to provide documents confirming the transfer of rights to computer programs (in fact, we are talking about the act of acceptance and transfer) and payment.

    Invoice for acquired computer programs. If programs were purchased together with equipment (computers), then in such an invoice, the price for the programs themselves should be highlighted in a separate line.

    Documents for the purchase of copies of computer programs The

    purchase of boxed software versions (including disks) is usually accompanied by a sales contract or a supply contract. In this case, as indicated above, the terms of the license agreement are either on disk or on the packaging of the computer program. Additional documents to confirm the acquisition of copies of computer programs are the invoice and waybill.

    Preset computer software

    The documents of title confirming the legality of using the preinstalled programs are: the contract of sale (delivery), also the invoice and the invoice, where the preinstalled software should be highlighted in a separate line, the certificate of authenticity, which is glued to the system case.

    Documents for software received from the parent company for global contracts


    The necessary documents to confirm the legitimacy of the use by a legal entity of the software received under global contracts from another legal entity will be:
    1. License agreements (global contracts) between the parent company and the copyright holder (paper copies);
    2. Sublicense agreement between the parent company and an affiliate;
    3. Documents confirming payment for computer programs;
    4. Act of acceptance (document is not required, but desirable).

    Additional documents confirming the legitimacy of using computer programs may be documents provided by the copyright holder. For example, under the Microsoft Enterprise Agreement, such documents may include:
    1. An email confirming the order of computer programs or a printed copy of this letter;
    2. Information on licenses registered by the parent company on a specialized Microsoft website.

    It should be borne in mind that the global contract should stipulate that licenses for software products can be transferred to affiliates, and pay attention to the degree of affiliation specified in the global contract when transferring licenses (it is indicated differently in different contracts, but, as a rule, 50% of the participation of the head person). If the “affiliation” condition is not observed, transferring software from one legal entity to another will constitute a violation of the license agreement (global agreement), unless otherwise provided by a separate written permission of the copyright holder.

    Responsibility for violation of the rights to use computer programs


    Civil liability


    The copyright holder has the right to use the methods provided by civil law to protect his rights, regardless of the onset of another responsibility - administrative or criminal. Civil protection is limited only by the limitation period, i.e. the established period for the protection of their rights (3 years).

    Exclusive rights are protected in court by filing a claim by a person whose rights are violated at the location of the defendant (as a rule). Civil liability may occur regardless of the fault of the offender.

    Relations arising from the creation and use of the results of intellectual activity, which include computer programs and databases, are regulated by Part IV of the Civil Code of the Russian Federation. A computer program is subject to copyright and is protected as a literary work ( Articles 1259, 1261 of the Civil Code of the Russian Federation ).

    In accordance with article 1301 of the Civil Code of the Russian Federation, in cases of violation of the exclusive right to a work, the author or other copyright holder is entitled, in accordance with paragraph 3 of Article 1252 of the Civil Code of the Russian Federation, to demand, at his option, compensation from the violator instead of damages:
    - in the amount of from ten thousand rubles to five million rubles , determined at the discretion of the court;
    - twice the cost of copies of the work or twice the value of the right to usea work determined on the basis of the price, which under comparable circumstances is usually charged for the lawful use of the work.

    The claim for damages should be accompanied by documentary evidence (presentation of calculations of losses confirmed by documents), therefore, the copyright holder has the right to demand compensation instead of damages, while in the statement of claim he can indicate any amount of compensation established by the Civil Code of the Russian Federation.

    The amount of compensation to be paid by the violator to the copyright holder is determined by the court based on the principles of reasonableness and justice (subjective and evaluative principles and depend on each specific case).

    It is also worth keeping in mind that in the event of repeated and gross violation of exclusive rights, a legal entity or individual entrepreneur can be liquidated by a court decision ( article 1253 of the Civil Code of the Russian Federation ).

    A repeated violation is the committing of similar actions (in this case, a violation of exclusive rights) more than once, and a gross violation can be recognized by the court, for example, causing major losses to the author along with ignoring the claims of the author (or other copyright holder) to terminate the violation of his exclusive rights.

    Administrative responsibility


    The Code of Administrative Offenses of the Russian Federation (hereinafter - the Code of Administrative Offenses) provides for administrative liability of citizens, officials and legal entities for violation of copyright and related rights ( article 7.12 of the Code of Administrative Offenses ).

    To bring a person to administrative responsibility, the goal of a committed violation is necessary - the extraction of income. A sign of the existence of an income-generating goal is present if computer programs are used in the organization’s commercial activities.

    Not only citizens (over 16 years of age, sane) and legal entities are brought to administrative responsibility, but also officials. At the same time, officials of a commercial organization are recognized as managers and other persons who perform organizational and administrative or administrative functions. In each case, when brought to administrative responsibility, the circle of persons is established on the basis of job descriptions and other internal documents of the organization (orders, powers of attorney, etc.).

    Do not forget that administrative liability occurs if the violator has the intention. Thus, a legal entity is found guilty of an administrative offense if it is established that it had the opportunity to comply with the rules and norms for the violation of which administrative liability is provided, but this person has not taken all measures depending on it to comply with them.

    It should be borne in mind that administrative punishment involves not only a fine (the amount of which depends on the subject of the offense), but also confiscation of counterfeit works and confiscation of materials and equipment used to reproduce them .

    Cases can be initiated both on the basis of applications and reports of citizens and organizations, as well as as a result of detecting signs of an offense directly by employees of law enforcement agencies. In any case, a copy of the decision to institute proceedings on an administrative offense during the day should be served against receipt or sent to the offender and the victim ( part 3.1 of article 28.7 of the Code of Administrative Offenses ).

    In cases where, after the identification of an administrative offense in the field of copyright and related rights, an examination is necessary, an administrative investigation is carried out. The term for an administrative investigation may not exceed one month (in exceptional cases, such a period may be extended, but not more than one month). At the end of the administrative investigation, a protocol on an administrative offense is drawn up ( article 28.7 of the Code of Administrative Offenses ). After that, the case must be submitted to the court within three days ( article 28.8 of the Code of Administrative Offenses ).

    After the court receives the protocol on the administrative offense and other materials of the case on the administrative offense, it must be considered by the judge within fifteen days (this period can be extended, but no more than for a month) (Article 29.6 of the Code of Administrative Offenses).

    Article 4.5 of the Code of Administrative Offenses sets the statute of limitations for administrative liability under Article 7.12 of the Code of Administrative Offenses - within one year from the date of the administrative offense.

    Criminal liability


    Unlike civil liability, criminal liability only occurs if the offender is at fault. Only an individual can be held criminally liable.

    Under article 146 of the Criminal Code of the Russian Federation (hereinafter - the Criminal Code of the Russian Federation ), a sane individual who has reached the age of 16 is subject to criminal liability. In case of copyright infringement, a legal entity may be subject to criminal liability of the head and other responsible person depending on the circumstances of the case and fault (for example, a system administrator).

    The first part of Article 146 of the Criminal Codeprovides for liability for acts, in the first place, encroaching on the personal non-property rights of the author. In particular, such an act may be declaring yourself to be the author of someone else’s work, releasing someone else’s work under your own name, publishing under your own name a work created in collaboration with no names of other authors.

    The second part of Article 146 of the Criminal Code of the Russian Federation provides for liability for violation of exclusive rights, namely for illegal use of objects of copyright and related rights, as well as for the acquisition, storage, transportation of counterfeit copies of works for the purpose of sale and on a large scale.

    As an additional punishment for an official, if the crime is committed using official position, the court may provide for such a sanction as a ban on engaging in certain activities or holding certain positions ( Clause 3 of Article 47 of the Criminal Code of the Russian Federation ).

    Counterfeit copies are subject to destruction without any compensation. In particular, equipment for the reproduction of counterfeit products is subject to confiscation ( paragraph "d" of part 1 of article 104.1 of the Criminal Code of the Russian Federation), and by court decision it can be destroyed at the expense of the violator.

    Reconciliation is possible by court decision only in the case when the person who first committed the crime repented and made amends for the harm caused to him (that is, for example, admitted his guilt in full and paid the author the required compensation). The court also has the right to terminate criminal prosecution in connection with the active remorse of the offender. However, reconciliation is impossible if the act was committed with aggravating circumstances ( Part 3 of Article 146 of the Criminal Code of the Russian Federation ).

    Responsibility for Part 2 of Article 146 of the Criminal Code of the Russian Federation- a fine in the amount of up to two hundred thousand rubles or in the amount of the convict's salary or other income for a period of up to eighteen months, or by compulsory labor for a term of up to four hundred and eighty hours, or correctional labor for a term of up to two years, or forced labor for a term of up to two years , or imprisonment for the same term.

    Crimes provided for in paragraph 3 of Article 146 of the Criminal Codebelong to the category of serious. If the acts were committed by a group of persons by prior conspiracy or by an organized group; in a particularly large size; by a person using his official position, then responsibility is forced labor for a term of up to five years or imprisonment for a term of up to six years with a fine of up to five hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to three years or without it .

    Acts shall be deemed committed on a large scale if the cost of copies of works or phonograms or the value of rights to use copyright and related rights exceeds one hundred thousand rubles, and in a particularly large amount - one million rubles.

    Responsibility of employees for installed software: delineation of responsibility


    In the event that as a result of the actions of employees the rights of the copyright holder are violated and the organization incurs losses (for example, in the form of payment of compensation), for such employees disciplinary and material liability is possible within the framework of labor relations. Such liability is provided by the Labor Code of the Russian Federation (hereinafter - the Labor Code ), and may also be provided an employment contract and the internal documents of the organization.

    The employee may be subject to disciplinary action, such as reprimand, reprimand and dismissal. When applying disciplinary action, the gravity of the offense committed and the circumstances in which it was committed must be taken into account ( Article 192 of the Labor Code of the Russian Federation ).

    It should be borne in mind that the employee's liability arises under the simultaneous presence of the following conditions: unlawful behavior (actions or omissions) of the causer; causal connection between unlawful action and material damage; guilt of committing an unlawful act (inaction) ( Article 233 of the Labor Code of the Russian Federation ).

    Officials of a commercial organization are recognized as managers and other persons performing organizational and administrative or administrative functions.

    In each case, when brought to administrative responsibility, the circle of persons is established on the basis of job descriptions and other internal documents of the organization (orders, powers of attorney, etc.).

    An official shall be administratively liable in the event he commits an administrative offense in connection with the non-performance or improper performance of his official duties ( Article 2.4 of the Code of Administrative Offenses ).

    Administrative responsibility implies the existence of intent for this type of offense. An administrative offense is recognized as committed intentionally if the person who committed it recognized the unlawful nature of his action (inaction), foresaw its harmful consequences and wished for the onset of such consequences, or consciously allowed or treated them indifferently ( Article 2.2 of the Code of Administrative Offenses ).

    Therefore, in order to bring to administrative responsibility of an employee, the following conditions are necessary: ​​the employee must be an official, the offense is committed in connection with the failure to perform or improper performance of his official duties, the offense is committed intentionally.

    When identifying an official who needs to be brought to administrative responsibility, they proceed, first of all, from his official duties. If the organization has a system administrator, then it can be primarily brought to administrative responsibility as the person responsible for using the software.

    If there is no IT specialist in the organization’s staff, the head of the organization will bear administrative responsibility for using unlicensed software.

    Grounds for Conducting a Check for Copyright Violations


    Verification of the legitimacy of using the software is possible in the framework of criminal proceedings, because copyright infringement is a criminal offense in accordance with Article 146 of the Criminal Code of the Russian Federation (paragraphs 2 and 3) , and the investigation of crimes is regulated by the Criminal Procedure Code of the Russian Federation (hereinafter - the Code of Criminal Procedure of the Russian Federation ).

    So, in accordance with paragraphs 2 and 3 of Article 150 and paragraph 2 of Article 151 of the Code of Criminal Procedure of the Russian Federation, a preliminary investigation of crimes under Article 146 of the Criminal Code of the Russian Federation is carried out in the form of a preliminary investigation by investigators of the Investigative Committee of the Russian Federation. It is a federal state body that exercises, in accordance with the legislation of the Russian Federation, powers in the field of criminal proceedings.
    Specialists of the Investigative Committee conduct a preliminary investigation of cases within their competence of the Code of Criminal Procedure .

    The system of the Investigative Committee of the Russian Federation can be represented as follows: An



    investigator of the RF IC has the right to institute criminal proceedings under article 146 of the Criminal Code of the Russian Federation if one of the following reasons exists: a statement of a crime, a confession or a report of a crime received from other sources (about which a report is prepared by employees internal affairs bodies). According to paragraph 43 of Article 5 of the Code of Criminal Procedure, a crime report isstatement of crime, confession, and a report on the discovery of the crime .

    Search Operations


    When deciding whether to initiate a criminal case, it is possible to carry out operational investigative measures / operational investigative activities (hereinafter - ORM / ORD), the purpose of which is to collect evidence (evidence base) to initiate a criminal case or criminal case for the prosecution. The conduct of operational investigative measures is regulated by the Code of Criminal Procedure of the Russian Federation and the Federal Law "On Operational Investigation Activities" (hereinafter - the Law on the ARD ). According to section 11 of the ARD Actthe results of operational investigative activities can be used to prepare and carry out investigative and judicial actions, conduct operational investigative measures to identify, prevent, suppress and solve crimes, identify and identify persons who prepare, commit or have committed them.

    ORMs are conducted by the inquiry body (1) on behalf of the investigator (2).
    1 - the body of inquiry is the internal affairs body of the Russian Federation, which has the authority to conduct an ORM.
    2 - the right of the investigator to give an order to the inquiry body on conducting an ORM is enshrined in clause 4 of part 2 of article 38 of the Code of Criminal Procedure of the Russian Federation, clause 3 of article 7 of the Law on MIA .

    Particular attention should be paid to the fact that "in solving the tasks of the operational-search activity, the bodies authorized to carry out it have the right ... to seize documents, objects, materials ... ”. This wording fully means the right of the inquiry body to carry out the seizure of computer hard drives. And further: “ In the case of seizure of documents, objects, materials during public investigative measures, the official who carried out the seizure draws up a protocol in accordance with the requirements of the criminal procedure legislation of the Russian Federation .”

    Items seized during the ORM within the framework of a criminal case will be used as material evidence in the case, since in accordance with Article 81 of the Code of Criminal Procedure of the Russian Federationthey served as instruments of crime or retained traces of crime; they can serve as a means to detect a crime and establish the circumstances of a criminal case. The investigator shall issue a decision on the attachment of material evidence to the case.

    Accordingly, the audit is carried out under the following conditions:
    1. The audit can be carried out by employees of the internal affairs bodies only on the basis of the order of the investigator of the Investigative Committee of the Russian Federation (the order must be duly executed);
    2. The audit is carried out only within the framework of solving the issue of initiating a criminal case under article 146 of the Criminal Code of the Russian Federation within a certain period (from 3 to 30 days) with sufficient reason - reporting a crime;
    3. As part of this audit, the seizure of documents and objects (equipment) is allowed with the preparation of the relevant protocol on seizure. Such a right was granted to employees of internal authorities during the verification of Article 15 of the Law on Horde . Investigative actions “search” and “seizure” are possible only if there is a criminal case;
    4. Relevant specialists may be involved in the audit.

    Recommendations to employees of the organization during inspections


    The algorithm of actions of the organization’s officials and its employees during inspections by state bodies can be as follows:
    1. By order of the organization, appoint a responsible officer who is authorized to be present during inspections (check the powers of the inspectors, provide clarifications, provide information, sign acts etc.).
    2. Conduct explanatory work among employees on possible inspections by state bodies and on the procedure for conducting such inspections. The organization’s personnel should not create an unhealthy environment during inspections by their actions (inaction), in particular, rude the inspectors to unreasonably refuse access to equipment or create other obstacles during inspections.
    3. The responsible officer must know the procedure for conducting such inspections, the rights and obligations of inspectors, the documents submitted by the inspectors during the audit, the rights and obligations of the organization to provide documents at the request of the inspectors.
    4. When conducting the audit, the responsible officer must verify the legality of such an audit based on the above requirements of the legislation (first of all, the authority of the inspectors, the correctness of the preparation of documents for the audit, etc.).
    5. In case of violation of the requirements of the legislation on the part of inspectors, the responsible employee must voice the revealed violations to inspectors. Any refusal, for example, admission to the territory, non-submission of the requested documents must be justified, otherwise such actions may entail administrative or criminal liability.
    6. The responsible officer should actively participate in the audit and record violations by the inspection bodies so that the organization can later file a complaint with higher authorities or the court about the actions of the inspection bodies, as well as demand damages (if any) in a civil action (arbitration court).

    The responsible employee should have information on the legal grounds for the organization to have software rights, which will allow it to have a “foundation” when communicating with law enforcement agencies on the principle: “if everything is legal, then there is nothing to fear”.

    Vladimir Razuvaev, Head of Business Consulting, Director of Legal Support, Softline.

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