New edition of changes in the Civil Code: open licenses, liability of providers and other interesting points
The draft amendments to the Civil Code, published on September 17 on the website of the State Duma Committee of the Federal Assembly of the Russian Federation on Civil, Criminal, Arbitration and Procedural Law , also contain new provisions that are generally interesting. The text is large, that’s what I singled out as the most interesting and tried to comment.
You can make a “statement on the possibility of free use of any person” of a work or object of related rights only on the official website of the federal executive body, which must be determined by the Government of the Russian Federation. Within the specified period, the application cannot be withdrawn, and the terms of use cannot be limited. At the same time, new points have appeared regarding the conflict of such a statement with existing contracts - for example, compensation for losses for those with whom licensing agreements were previously concluded (the question arises as to what could be the loss if it comes to a non-exclusive license).
The authors, apparently, positioned this system not as an implementation of opensource licenses, but as something else that did not seem to interfere with opensource. And now a new article 1286-prim, “Open license for the use of works of science, literature and art” has been introduced into the project. It does not require posting on the official website, as described above. The article is quite large and detailed, probably its detailed reviews are yet to come, but so far it’s striking that for everything except programs, if it is not indicated, it is valid for five years, and only for “computer programs” for the entire term of protection . For such a license, a simplified procedure for concluding a contract and the possibility of protecting the rights of the author are provided.
“A ban on the implementation of actions in information and telecommunication networks” may be imposed in order to secure a claim if “a violation of the exclusive right has been put forward”. Moreover, the demand can be made not only to the violator, as provided for in the current edition, but also “to other persons without whose involvement it is impossible to suppress actions that violate the right or create a threat of violation”, and these persons are considered “obligated to take measures” to suppression of violation - from various points of the draft amendments to Art. 1252
Providers (in terms of the project - "information intermediaries") are divided into those who "carry out the transfer of material" on the network and those who "provide the opportunity to place materials" on the network. Moreover, liability is applied to them if the offender is guilty (Art. 1252), as well as subject to certain conditions. If with respect to the former it is quite definite, that is, it is not the initiator of the transfer, does not determine the recipient and does not change the material except for technological purposes, then with the latter it is less definite. They should not be aware of the lawfulness of the use of the material, and “in case of receipt of a written statement by the copyright holder” they should take “necessary and sufficient measures”, which, in turn, are not defined in this text and their list and procedure for implementation “can be established by law "- from the draft art. 1253-approx. It should also be noted here that the absence of guilt is proved by the violator, according to the new paragraph 4 of Art. 1250, and whether the intermediary is an intruder here is not entirely clear.
A web site is equated to a collection or composite work (Art. 1260) (although if Wikipedia equates a web site and a web site, some other sources claim that the web site is primarily a computer)
Digitization of copies of scientific and educational literature by libraries , which was allowed in the draft of the first reading with the condition of providing their readers only in the library premises without the possibility of users to create digital copies, is now furnished with additional conditions - the publication should not be reprinted vatsya 10 years in Russia, and at the same time is digitized copy must belong to the library. But it can be transmitted, including in the order of mutual use of resources by libraries. Copies of dissertations can be created for transfer to other libraries (Article 1275).
There is a provision from the last project that allows archives to make copies of works posted on the Internet “with the exception of subsequent reproduction and bringing to the public” (and then the question arises, for what purpose?) The
freedom of photographing and drawing works of architecture is supplemented by urban planning and gardening park art (Art. 1276) The
boxed license has been supplemented - now it can be indicated not only on the box, but also in electronic form (art. 1286 with reference to clause 2 st. 434)
The amendments leave a dual impression. Part four, and so very large and difficult to read, is again becoming more complicated. The draft changes are being improved. Apparently, from the point of view of the legislator, this is a compromise between different requirements. According to media reports, it will be considered on September 26, so the possibilities to influence it, apparently, have already been exhausted.
Open licenses and “irrevocable waiver of rights”
You can make a “statement on the possibility of free use of any person” of a work or object of related rights only on the official website of the federal executive body, which must be determined by the Government of the Russian Federation. Within the specified period, the application cannot be withdrawn, and the terms of use cannot be limited. At the same time, new points have appeared regarding the conflict of such a statement with existing contracts - for example, compensation for losses for those with whom licensing agreements were previously concluded (the question arises as to what could be the loss if it comes to a non-exclusive license).
The authors, apparently, positioned this system not as an implementation of opensource licenses, but as something else that did not seem to interfere with opensource. And now a new article 1286-prim, “Open license for the use of works of science, literature and art” has been introduced into the project. It does not require posting on the official website, as described above. The article is quite large and detailed, probably its detailed reviews are yet to come, but so far it’s striking that for everything except programs, if it is not indicated, it is valid for five years, and only for “computer programs” for the entire term of protection . For such a license, a simplified procedure for concluding a contract and the possibility of protecting the rights of the author are provided.
Responsibility, the shadow of the Chinese firewall, and information intermediaries
“A ban on the implementation of actions in information and telecommunication networks” may be imposed in order to secure a claim if “a violation of the exclusive right has been put forward”. Moreover, the demand can be made not only to the violator, as provided for in the current edition, but also “to other persons without whose involvement it is impossible to suppress actions that violate the right or create a threat of violation”, and these persons are considered “obligated to take measures” to suppression of violation - from various points of the draft amendments to Art. 1252
Providers (in terms of the project - "information intermediaries") are divided into those who "carry out the transfer of material" on the network and those who "provide the opportunity to place materials" on the network. Moreover, liability is applied to them if the offender is guilty (Art. 1252), as well as subject to certain conditions. If with respect to the former it is quite definite, that is, it is not the initiator of the transfer, does not determine the recipient and does not change the material except for technological purposes, then with the latter it is less definite. They should not be aware of the lawfulness of the use of the material, and “in case of receipt of a written statement by the copyright holder” they should take “necessary and sufficient measures”, which, in turn, are not defined in this text and their list and procedure for implementation “can be established by law "- from the draft art. 1253-approx. It should also be noted here that the absence of guilt is proved by the violator, according to the new paragraph 4 of Art. 1250, and whether the intermediary is an intruder here is not entirely clear.
Miscellaneous
A web site is equated to a collection or composite work (Art. 1260) (although if Wikipedia equates a web site and a web site, some other sources claim that the web site is primarily a computer)
Digitization of copies of scientific and educational literature by libraries , which was allowed in the draft of the first reading with the condition of providing their readers only in the library premises without the possibility of users to create digital copies, is now furnished with additional conditions - the publication should not be reprinted vatsya 10 years in Russia, and at the same time is digitized copy must belong to the library. But it can be transmitted, including in the order of mutual use of resources by libraries. Copies of dissertations can be created for transfer to other libraries (Article 1275).
There is a provision from the last project that allows archives to make copies of works posted on the Internet “with the exception of subsequent reproduction and bringing to the public” (and then the question arises, for what purpose?) The
freedom of photographing and drawing works of architecture is supplemented by urban planning and gardening park art (Art. 1276) The
boxed license has been supplemented - now it can be indicated not only on the box, but also in electronic form (art. 1286 with reference to clause 2 st. 434)
Total
The amendments leave a dual impression. Part four, and so very large and difficult to read, is again becoming more complicated. The draft changes are being improved. Apparently, from the point of view of the legislator, this is a compromise between different requirements. According to media reports, it will be considered on September 26, so the possibilities to influence it, apparently, have already been exhausted.