March 18, 2013 at 17:16Exposing 12 legal misconceptions about computer programs
| Misconception / Dangerous Habit | In fact … | Our tip is simple: |
| 1. We created the program and automatically became its authors and copyright holders. For the protection and sale of the program, no documents need to be executed, because it is protected by copyright - ©! | Indeed: the computer program is protected by copyright as a literary work (p.1 art. 1259, art. 1261 of the Civil Code of the Russian Federation). But the fact that for the creation of copyright does not require registration or compliance with any other formalities (Clause 4 of Article 1259 of the Civil Code of the Russian Federation) in no way exempts: - from compliance with a set of criteria established by law; - from the need to document the fact of creating the program and their rights to them. Unformed SOFT law does not protect. It's simple: if you have a dispute about the rights to the program, then without documents you cannot prove that (1) you had rights and (2) your rights were violated, (3) that this set of data and commands in the programming language itself is intellectual property (after all, various versions and releases do not create any new intellectual property). The same thing - when registering and making accounting entries. In short: no documents = no intellectual property = no violation of rights = no compensation for violation of rights. | Make out a lot of good and different documents when creating computer programs: - agreements with authors; - contracts with contractors; - technical specifications; - minutes of meetings and tests; - agreements between co-authors; - certificate of authorship; - certificate of recognition of intellectual property; - RID specification; - certificate of registration of a computer program (Rospatent). |
| 2. Any program is automatically protected by copyright - ©. | Dangerous myth! After all, the programs are subject to the same requirements for obtaining protection by law, as to other works. The program should be created by the creative work of the author (Articles 1228, 1257 and 1259 of the Civil Code of the Russian Federation) and many more conditions, without which the computer program is only the result of intellectual activity without legal protection. Many developers of popular programs did not become millionaires just because they did not care about the design of their rights and documents. | Invite compliance assessors to help. To confirm the creative nature of the creation of the program, it is desirable to justify that the program has signs of novelty, uniqueness and (or) originality. |
| 3. The best way to avoid violating someone else’s rights to the software is to order a freelance programmer to develop the program from “0”, or even better, from a company. | The author (or company) can sell you not his work (but copy or modify someone else's), but you will still be liable to the real authors and copyright holders, that is, from a bona fide buyer turn into a violator of someone's intellectual rights and compensation for property damage will fall on your shoulders. Unfortunately, many programmers copy and paste ready-made solutions, texts, images into your product, not realizing that they violate the rights of their authors and developers. As a rule, compensation and legal expenses exceed the cost of a legal program by 1-2 orders of magnitude! | Provide in the contract guarantees of legal purity of the product, liability for plagiarism, restrictions on disclosure and the obligation to answer for violations of the rights of third parties. Always require the transfer of real source code and draft versions. The course, the history of the development of the program can be recorded in the blog. In the case of claims - the programmer must be involved in the dispute! |
| 4. You can copy the code of the program or site without consequences. He is not protected and everyone can see him on the Internet. Moreover, the author did not prohibit copying the code (he did not encrypt). | The copyright protection mark is placed at will (Article 1271 of the Civil Code of the Russian Federation), while it only performs the "decorative" function of indicating the copyright holder, but can also be evidence of the assignment of someone else's exclusive rights. According to lawyers, the absence of a ban is not considered consent (Clause 1, Article 1229 of the Civil Code of the Russian Federation). Having the code or design in the public domain does not mean that it can be easily taken and used! Throughout the civilized world, even free programs are distributed under open licenses, which contain a number of conditions and restrictions. | Obtain consent from the author (of this) to use his work and conclude a license agreement with him. Warn your developers in advance. |
| 5. To become the owner of the program, it is enough to hire a programmer and pay for his work under the contract. | The performance of work, for example, under an author’s order agreement (Art. 1288, Art. 1296 of the Civil Code of the Russian Federation), and transferring the work on tangible media does not necessarily entail alienation or granting rights to the created work. You may find yourself in a situation - ordered and paid for the work, received the result of work, but did not receive property intellectual rights. Transfer of rights is an independent legal act, which should be unambiguously fixed by the contract and documentation. For you to be recognized as the sole owner of the rights, this must be directly recorded in the documents. | Include in the contract conditions: (1) on the payment of royalties; (2) on the granting or alienation of rights to the Customer; (3) the impossibility of waiving the right to disclosure. Always transfer the transfer of rights by an act or include such conditions in the performance documentation. |
| 6. Registration of the program in Rospatent protects my rights by 100%. | Registration is done at the request of the Copyright Holder, declaratively (Clause 1, Article 1262 of the Civil Code of the Russian Federation). The issued Certificate is not a title document, since Rospatent is not responsible for its accuracy (Clause 6, Article 1262 of the Civil Code of the Russian Federation). Thus, you can state absolutely any facts in the application and receive the corresponding Certificate (in confirmation of which you will find a blog about curious examples on our website). But the need to prove intellectual property and rights to it will lie with you after the state registration of the computer program. After registering a computer program, agreements on the alienation of rights are also subject to state registration (Clause 5, Article 1262 of the Civil Code of the Russian Federation). This causes additional difficulties in the process of selling software rights. | Thus, the meaning of state registration comes down to depositing a program or even a single fragment — do it yourself. In a controversial situation, the Certificate can only confirm that at the time of state registration the text of the program or its fragment existed. Therefore, to confirm authorship and the fact of acquiring intellectual property rights in the software, and therefore for subsequent monetization, you need additional evidence and documents of authorship and rights. |
| 7. It is more reliable to acquire copyright in a program from a legal entity than from an individual author. | The author of the result of creative activity can only be an individual (paragraph 3 of Article 1228 of the Civil Code of the Russian Federation). Most companies do not formalize their relations with employees properly; therefore, they do not receive rights to a software product from them and appropriate and sell other people's rights. Ask the contractor for at least one signature from the developer - and see for yourself. Now decide what is more reliable - a titmouse in the hands or a crane in the sky? | Get rights directly from the author or check the chain of rights transfer - as a rule, this is difficult, then require certificates of recognition and passports of intellectual property, copies of documents of title. |
| 8. I own 50% of the authorized capital - which means that the rights to the issued SOFT also belong to me. | To the Company’s participant (or shareholder), the Law and the Charter provide only the right to participate in the management of the Company. The company's shareholders do not legally own its assets, because the owner can be only one person - the company itself. Disposed by the property of your company is its head. We met examples when intellectual property rights to software were included in the authorized capital. In this case, the cost of rights is determined on the basis of unfounded allegations of the “copyright holder” ... without documents. Any conflict in the company will lead to the fact that the participant will receive only a small monetary compensation and will not be able to take back the entered rights. And the size of your share does not matter in this case. | Understand the essence of contractual, corporate relations and legal forms of legal entities. If you are involved in the development of SOFT and want to get rights, register it separately. |
| 9. If you hire a programmer under an employment contract, then all the software written by him will belong to the employer company. He gets his salary, and companies - software and rights. | An employment contract is not the only sufficient evidence of software rights (see, for example, the “programmer vs Vimpelcom” case pravo.ru/court_report/view/80180 ). Law and court practice require that the employer, in addition to salary, also pay royalties for the transfer of rights (paragraph 26 of the Resolution of the Plenum of the RF Armed Forces No. 15 of 06/19/2006). Salary is a payment for the performance of a labor function, and an employee receives separate money for creativity. | In addition to the employment contract, fill out job assignments, reports on their implementation, acts on the transfer of RID to the employer, and reports on conformity assessment with the arguments for granting them legal protection. A separate line - documents on the alienation of intellectual property rights and the payment of royalties. |
| 10. An advanced site can be protected by a patent for an industrial design, but a regular site will still be stolen by competitors. The same applies to website design. | Yes, it is possible if it is a hardware-software complex - an integral object of intellectual property based on technical solutions. But even the most minimal changes in the design (without changing the idea, concept) will allow the competitor to circumvent the patent. In addition, the value of any site is its content, for this patent has not yet been invented, these are works or know-how. A competent study of the documentation allows you to protect the site as a work of design, graphics and literature - to prohibit its copying, processing and reproduction in other forms. 100% copy protection does not exist, but not all are copied, and not always without consequences. | Evaluate the effect of protection actions taken with the cost of maintaining it. Find out the patent filing time and you are unlikely to be satisfied. The copyright holder can independently draw up all the documents necessary for successful protection. Compensation from 10 thousand to 5 000 000 rubles can be recovered for violation of rights to a work. |
| 11. If I bought a disk (downloaded a file) with the program and paid for it, I can freely distribute and copy it. By analogy with a book, I can give it to a friend to read. | Copying of the program is possible only for archival purposes and to replace a lost copy (paragraph 2 of paragraph 1 of article 1280 of the Civil Code of the Russian Federation). | Check the license and terms of use of the program, do not violate the agreement with the copyright holder. Even harmless copying or posting on a torrent can have serious consequences !. |
| 12. Put soft on the balance sheet as intangible assets - yes, this is unrealistic! | The accountant cannot understand what documents confirming the existence of an asset and the right to the results of intellectual activity are: PBU 14/2007 “Accounting for Intangible Assets” requires these documents, but it is not explicitly stated what documents are needed for which object. In these cases, it is recommended to look into the standards and guidelines of the Intellectual Property and Innovation series. Your lawyer should know (or find out) what kind of documents these are and how the accountant should reflect the transactions in accounting. | Turn to lawyers who feel comfortable in matters of accounting for intellectual property rights. Competent accounting of intangible assets - and SOFT is one of them, will bring it from the category of “shadow products” into the main factor of capitalization. |
Who is warned is armed.