How to correctly execute intellectual rights to the program?

    To begin with, we ask ourselves why do we even need to formalize the rights?


    Registration of rights is necessary in order to:
    1) Sell the program. In most cases, programs are created specifically for sale. Commercialization of programs is possible through the purchase and sale of copies on tangible media, as well as through the conclusion of licensing agreements or an agreement on the alienation of rights in full. In any case, only the copyright holder can sell and he must prove to the buyer his rights.
    2) Upon sale, receive exemption from value added tax (VAT) in accordance with paragraphs 26, paragraph 2, article 149 of the Tax Code of the Russian Federation
    3) Put the program on the balance sheet as an intangible asset (paragraph 3 of article 257 of the Tax Code of the Russian Federation)
    4) Make a reasonable market assessment of the software product
    5) Contribute to the charter capital of the LLC as a contribution of the founder (exponential experiencedescribed recently )
    6) Get evidence to protect the rights to the program from violations by employees (authors) and competitors
    7) just be calm about your asset, if you don’t even intend to make transactions with the software product.
    If the author and the customer of software products do not set themselves the listed goals, then it is not advisable to spend time and money on registration of the right.

    How to apply securely or what to add to the certificate of registration of Rospatent?


    An obvious way to obtain a registration certificate is necessary, but it is not a panacea and it is clearly not enough to effectively achieve the goals set above. We already wrote about this .
    Options for registering rights to software products depend on how you create the software. At the same time, we must not forget that under Russian law the original copyright holder is always an individual - the author (Clause 3 of Article 1228 of the Civil Code of the Russian Federation). In the United States, the company immediately appears on the results of intellectual activity created by employees (the “echo of the slave system”), but in Russia, fortunately or unfortunately, this is not so.

    Consider the possible options:

    Option 1. The authors create the program on their own initiative

    It is better to conclude an agreement between the co-authors, in which it is necessary to envisage the goals and procedure for creating the program, the distribution of tasks between the co-authors, the allocation of persons who are not authors, but provide only technical, consulting, organizational or material assistance and, accordingly, do not acquire copyright, and other aspects creating a program. In addition, in this agreement it is advisable to fix the conditions for further disposal of software rights.

    Also, as you create or after completing work on the program, it is recommended to draw up a program specification, which reflects the main points that affect the recognition of the regime as the result of intellectual activity: the details of the authors, their level of education and special training, the timing of the program, the goals of the program, information about the financing of development and development costs, hardware and software used to create the program, and much more.
    In the future, the contract and specification may be presented to justify the occurrence of copyright as evidence.

    Option 2. Creating a custom program by external authors (freelancers) - individuals

    A simple option for registration is to conclude a contract of author’s order, the “hardened” form of which we have already discussed with the whole world . It will be very good if, in addition to transmitting the program, the authors prepare a specification and also give it to the customer.

    Option 3. Creation of the program by internal employees of the company

    In this case, we must once again recall that physical persons initially become right holders, since only they have the ability to think and create, create an intellectual product. Accordingly, for registration of rights to a company of official intellectual property, it is necessary to prepare a set of the following documents:
    (1) a competent labor contract, which should include additional obligations of the employee to carry out intellectual activity;
    (2) a formalized document according to which each result of intellectual activity (for example, specifications) can be identified;
    (3) official assignment, based on the results of which the result should be obtained;
    (4) the act of transferring the result from the employee to the employer;
    (5) an agreement on the payment of royalties, which, contrary to a common myth, is never included in the salaries of employees.
    It seems that there are too many documents and this paper bureaucracy is beyond the power of the company? You can take advantage of the batch proposal and make all documents in electronic form, for example, in your corporate program for collaboration and project management jira, basecamp, bitrix24, megaplan, etc.

    Option 4. Acquisition of a program from a company

    This option involves the use of the maximum set of documents for registration of rights. On the one hand, you must have an agreement with the company on the alienation of rights or a license agreement (option 2), on the other hand, the company must prove to you that it has rights, since it received them from its employees (freelancers) and, therefore, has the ability to transfer rights to you under the agreement (option 3).

    Thus, a competent approach to registration of rights will save time and money, as well as effectively achieve the goals set at the beginning of the post.

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