Intellectual property in the field of software. Expert Answers

We continue the rubric “ask questions to Intel experts”. In a previous post, we voiced the topic of dialogue - “Intellectual Property in the Field of Software” and introduced our expert - Stanislav Bratanov , Intel engineer for Intellectual Property, Patent and Copyright in the field of software . A sufficient number of your questions have been received in the comments and private messages, now is the time to publish answers to them. Questions asked publicly are provided with the nickname of the author for ease of search.

“How can authorship be fixed and given for general use the developed algorithm with the only requirement to mention its author-developer?”

I can offer patenting and the provision of a non-exclusive license, indicating, for example, that “it is mandatory to mention the author by directly applying text to a device containing a patented invention, including in technical documentation, text applications for related software in the form of an unencrypted text file in the encoding standard for the operating system systems in which the above software should function, as well as in any other way, allowing about unambiguously identify the author of the invention ”, to an indefinite number of persons for the duration of the patent - and for 20 years everyone will have to mention the author in the above ways. If we are talking about a program that implements this algorithm, then a similar license can be placed in the source code of the program itself,

Question astrobeglec :

I write small programs to solve highly specialized problems. Some of these programs have closed analogues, and they are paid (there are such tasks that it is easier to implement the task yourself than to pay and suffer with support). Now the question itself is - in the case of a dispute with the copyright holder, if he claims that I used his code, who should prove that the code is identical or similar to the existing closed one?

The burden of proof lies with the one who claims. It is necessary to prove that the program is a derivative work, that is, to compile it, decompilation and / or study of the original program was used and the new program is similar to the original one, or fragments of the original are used in the new program (in any form, machine-readable or original). EndUser

Question :

What is the subject of intellectual property rights in software? Compilation as part of your project? Extracting tricks and ideas from code research? Selling software with the library in question? Please list all aspects that are governed by this area of ​​jurisprudence. As I understand it, there are twenty to fifty of them, and even listing them is problematic.

Here, as I understand it, there are two questions: “What is protected by copyright in the field of software?” And “What actions are a violation of the exclusive right?”
1. A computer program is recognized as the object of copyright as a set of data and commands intended for the functioning of computer devices, expressed in any form, as well as preparatory materials and audiovisual displays generated by the program.
2. With respect to copies obtained illegally, any actions constitute a violation. In relation to legally acquired copies, any actions not expressly authorized by the copyright holder, with the exception of backup, as well as study, decompilation, modification in order to eliminate errors or ensure functioning on the user's technical means. The general rule is as follows: copies of even a legally acquired work cannot be entered into civil circulation without explicitly obtaining permission from the copyright holder. Nutterix

Question :

Have you ever come across examples of litigation in Russia specifically regarding plagiarism of the source codes of computer programs? And if so, please give examples.
Because in the USA, for example, there are a lot of such examples (especially judicial ones), while in Russia from such cases I recall only a lawsuit against Aeronavigator LLC regarding its Meridian program and nothing more.

I was not specifically interested in this issue.

Question PapaBubaDiop :

What percentage of the difference in the code gives the right to consider the program copyright?
How many pixels do you need to change in the original 128 to 128 picture to make it yours?

To be honest with this issue, no matter how much you change, the new work will still be derivative (by definition: it is obtained by changing the original). Another thing is that in many cases it is very difficult to prove the connection between the original work and the derivative. On the other hand, it is possible (theoretically) absolutely independently to create your own work, which will be identical to the existing one, and each author will have the exclusive right to his work.

How does Russian legislation in this area relate to foreign? In what aspects is it stricter, in which it is more liberal?

Comparison is a separate major topic. And it’s difficult to compare: fines in different countries are calculated on the basis of income or damage, and, of course, in the USA they will always be higher. It is also difficult to compare the terms of imprisonment, because, for example, in the USA the terms of imprisonment are usually higher, but there is a different system of parole, so it’s hard to say who really “spends more”.

How do you feel about the latest legislative initiatives in the Russian Federation (for example, such )? How can they complicate the life of software developers and users?

It is only easier for law-abiding developers and users, since the legislator (supposedly) takes their side (although, by placing his product on the network, the developer can easily end up on the other side). Therefore, I am personally wary of extremes, although I am aware that this can be an effective measure in the fight against pirated sites. I would still look to simplify the judicial procedures / specialization of the courts, ideally in one court session to decide on the availability of rights, committing acts that violate them, determine the circle of perpetrators / proper defendant, or take adequate measures to secure a temporary claim identification of perpetrators (block access to the site, individual files or to the account of an unidentified person who posted counterfeit materials on the site).

What do developers need to know about patent claims?

The fact that when creating your programs there is always a risk of violating someone’s patent and that after the program is put into civil circulation (under any conditions, on a fee or free basis), you need to be prepared for patent lawsuits.

On the Internet there are now many sites that partially or completely ignore APs (torrent trackers, online libraries, etc.) How do you see their future?

I believe that everything will be legalized over time: for one reason or another, especially malicious violators will be closed, and the rest will find mutually beneficial solutions with copyright holders (for example, they will facilitate / simplify / automate the conclusion of agreements with copyright holders, optimize conditions, minimize user fees, and compensate costs due to monetization of the popularity of its resource, etc.).

Is it possible to overcome the fundamental contradiction in the field of AP, leading to theft: the creator of the product wants to sell it more expensive, and the buyer wants to buy cheaper?
What does a developer need to do to protect their rights to the created software?

There is only one way out - to create conditions under which stealing becomes more expensive than buying. There is no definite recipe. There are different strategies. If you try to answer in the most general way possible, it is proposed to use all available protection measures: both technical and legal, the latter include: registration of software to protect against copying by competitors, patenting an algorithmic solution to gain leverage over competitors, and also providing free version for popularizing and “pulling” the market share of illegal software lovers.

Question batollo :

Since Creative Commons are not officially working in Russia, the status of the public domain becomes the actual substitute for the freest version. Tell me exactly how I can transfer my works to the public domain and what needs to be done for this.
It is also of extreme interest to whether it is possible to draw up an agreement on the transfer of contributions to the public domain in electronic form in the scenario “the user is registered on the site, accepts the agreement, edits the articles, and edits automatically become the public domain”.

The term "public domain" is applied to objects of copyright, patent law and related rights whose validity period of the exclusive right has expired. In your case, you just need to state the terms of the non-exclusive non-exclusive license in writing (directly in the text of the copyright object, in the annex to the copy, in the electronic system through which the object is accessed, etc.) and indicate that any use of the copyright object means acceptance of the terms of use set forth in the license, that is, the conclusion of a license agreement.

Who, for what and how much can now get in Russia for actions that violate copyright in the software?

As an answer to this question, I allow myself to quote the relevant articles of the Code of the Russian Federation on Administrative Offenses and the Criminal Code of the Russian Federation:
Code of the Russian Federation on Administrative Offenses
Article 7.12. Infringement of copyright and related rights, inventive and patent rights
1. Import, sale, rental or other illegal use of copies of works or phonograms for the purpose of generating income in cases where copies of works or phonograms are counterfeit in accordance with the legislation of the Russian Federation on copyright and related rights or on copies of works or phonograms are indicated false information about their manufacturers, about places of their production, as well as owners of copyright and related rights, as well as other violation of copyright and related rights in order to extract profit ode, with the exception of cases provided for in paragraph 2 of Article 14.33 of this Code, - entails the imposition of an administrative fine on citizens in the amount of one thousand five hundred to two thousand rubles with confiscation of counterfeit copies of works and phonograms, as well as materials and equipment, used for their reproduction, and other instruments of an administrative offense; for officials - from ten thousand to twenty thousand rubles with confiscation of counterfeit copies of works and phonograms, as well as materials and equipment used to reproduce them, and other instruments for committing an administrative offense; for legal entities - from thirty thousand to forty thousand rubles with confiscation of counterfeit copies of works and phonograms, as well as materials and equipment used to reproduce them, and other instruments for committing an administrative offense. used for their reproduction, and other instruments of an administrative offense; for legal entities - from thirty thousand to forty thousand rubles with confiscation of counterfeit copies of works and phonograms, as well as materials and equipment used to reproduce them, and other instruments for committing an administrative offense. used for their reproduction, and other instruments of an administrative offense; for legal entities - from thirty thousand to forty thousand rubles with confiscation of counterfeit copies of works and phonograms, as well as materials and equipment used to reproduce them, and other instruments for committing an administrative offense.
2. Illegal use of an invention, utility model or industrial design, with the exception of cases provided for in paragraph 2 of Article 14.33 of this Code, the disclosure without the consent of the author or applicant of the essence of the invention, utility model or industrial design before official publication of information about them, attribution or coercion to co-authorship - shall entail the imposition of an administrative fine on citizens in the amount of one thousand five hundred to two thousand rubles; for officials - from ten thousand to twenty thousand rubles; for legal entities - from thirty thousand to forty thousand rubles.
Criminal Code of the Russian Federation
Article 146. Violation of copyright and related rights
1. Assignment of authorship (plagiarism), if this act has caused major damage to the author or other copyright holder, is punished with a fine in the amount of up to two hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to eighteen months, or by compulsory labor for up to four hundred eighty hours, either by corrective labor for a term of up to one year, or by arrest for a term of up to six months.
2. Illegal use of copyright or related rights objects, as well as the acquisition, storage, transportation of counterfeit copies of works or phonograms for marketing purposes, committed on a large scale, shall be punishable by a fine in the amount of up to two hundred thousand rubles or in the amount of the convicted person’s salary or other income for a period of up to eighteen months, either by compulsory labor for a term of up to four hundred 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 Ishenim liberty for the same period.
3. The acts provided for by the second part of this article, if they are committed:
b) by a group of persons by prior conspiracy or by an organized group;
c) on an especially large scale;
d) by a person using his official position, - shall be punishable by forced labor for a term of up to five years or imprisonment for a term of up to six years with a fine in the amount of up to five hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to three years or without such.
Note. The acts provided for in this article shall be deemed committed on a large scale if the cost of copies of works or phonograms or the cost of rights to use copyright and related rights exceeds one hundred thousand rubles, and in a particularly large amount - one million rubles.
Article 147. Violation of inventive and patent rights
1. Illegal use of an invention, utility model or industrial design, disclosure without the consent of the author or applicant of the essence of the invention, utility model or industrial design prior to the official publication of information about them, attribution of authorship or coercion to co-authorship, if these acts have caused major damage, shall be punishable by a fine in the amount of up to two hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to eighteen months, or by compulsory labor for a term of up to four hundred eighty five hours, or forced labor for up to two years, or imprisonment for the same term.
2. The same acts committed by a group of persons in a preliminary conspiracy or by an organized group - shall be punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of one year to two years, or by forced labor for a term of up to five years, either by arrest for a term of up to six months, or by imprisonment for a term of up to five years.
The distinction between the administrative structure and the criminal structure is made according to the size of the damage caused.