Did the authors of the amendments to the Civil Code of the Russian Federation finally decide to destroy Linux, Wikipedia, OpenStreetMap, Firefox, Chromium and LibreOffice?
February 5, 2012 on the Portal of Russian Private Law published another draft amendments to the civil code ( news in Vedomosti , Google cache , copy) “It was prepared by a working group led by Minister of Justice Alexander Konovalov, which includes representatives of the presidential council for codification of civil law, the Ministry of Economic Development, the Supreme Arbitration Court, and the president’s legal department. The project was sent to the presidential administration, follows from a letter from Konovalov addressed to Dmitry Medvedev. "
Unfortunately, this project still contains unchanged items that a year ago caused strong criticism of the entire Internet community.
First of all, we are talking about a proposal to supplement article 1233 with paragraph 6 of the following content:
6. The rightholder may make a statement granting any persons the opportunity to use the result of intellectual activity belonging to him free of charge on the terms and conditions specified by him and for the period indicated by him. During this period, any person has the right to use this result on the specified conditions.
If there is no indication in the application of the copyright holder for a period, it is considered that this period is five years.
If there is no indication in the application of the copyright holder of the territory, it is considered that this is the territory of the Russian Federation.
The copyright holder does not have the right to carry out such actions in the presence of valid paid license agreements, under which the right is granted to use the result of intellectual activity to the same extent.
Specified statementshould be done by posting on the official website of the federal executive authority for intellectual property. In the event that state registration is carried out with respect to the result of intellectual activity, information on such a statement must be entered by the federal executive authority for intellectual property in the corresponding state register.
The provisions of this paragraph shall not apply to the results of intellectual activity in respect of which this Code establishes the procedure for the granting of an open license by the copyright holder (Articles 1368 and 1429).
Full text of the bill
This proposal was previously called "profanity and discrediting the very idea of free licenses." Anatoly Semenov, adviser to the chairman of the subcommittee on economics and innovation of the State Duma Committee on Culture, back in April 2011, commenting on the proposal, said :
“My dear phrase“ The copyright holder does not have the right to carry out such actions in the presence of valid reimbursable license agreements ”literally means that in cases where some RAO has concluded the notorious“ license agreement for the RAO Repertoire ”in which, as it is known that thanks to another sovereign Russian idea called “state accreditation of OKUPs” the entire repertoire of the visible part of the Universe is included, the poor copyright holder no longer has the right to allow his fan for example, freely and free publicly perform your work! ”
On May 18, 2011, lawyer Vadim Kolosov stated that the proposed amendments to Art. 1233 of the Civil Code “distort the essence of licenses and do worse than it is now."
Sergei Sereda, regarding the requirement to post applications on Rospatent’s website, stated that “with this approach, our last authors will flee abroad to publish / release the software there”, and “foreign authors / copyright holders wanted to spit on our ROSPATENT and some there are “statements”. ”
D. A. Saveliev , Ph.D. in Law , said that the amendments do not take into account the widespread worldwide practice of using free licenses - Creative Commons, GNU, etc., under which they are valid for the entire duration of copyright in the whole world and do not require the participation of state bodies in registering or performing other formalities.
Also see Pavel Protasov’s great good article criticizing the bill .
RAEC and Wikimedia RU proposed to indicate that a statement can be made in free form, the use of a work does not have to be free, the term should be equal to the entire term of copyright, and the territory should not be limited only to Russia, but spread to the whole world. The clauses on expiration and territory are not critical for CC, but they do not allow the GPL to work as intended.
They also suggested the deletion of the phrase “The copyright holder does not have the right to carry out such actions if there are valid onerous license agreements that provide the right to use the result of intellectual activity to the same extent” and make the application optional on the official website of the federal executive body.
It is worth noting that the RAEC amendments were also criticized by Protasov .
None of the proposals have been implemented. All public suggestions were ignored. The adoption of the current version of the amendments as a law may make such projects as Linux, Wikipedia, OpenStreetMap, Firefox, Chromium and LibreOffice illegal, as they won’t be able to send thousands of statements about every change in code or text to the site.This was warned in the media . In Russian Wikipedia alone, 800,000 registered participants only. So what? Until all 800,000 write an application to Rospatent, then, for example, will they be sent to prison for CDs with Wikipedia as for counterfeit films?
Also, proposals were not accepted to amend other articles of the Civil Code.
Thus, proposals were not accepted to amend Articles 1228 and 1269 to limit the right of withdrawal.
The authors of the February amendments introduced article 1286 only on programs and databases (this is the only change so far found regarding licenses), but the general proposal of RAEC aimed at securing CC and FDL was ignored.
What will happen after the adoption of the law by the State Duma?
There are different opinions:
“it doesn’t interfere with the use of Creative Commons on a general basis ”
“ There is a risk that judges, referring to the existence of a special rule, will deny legal licenses to free licenses ”
“ The mechanism provided for in paragraph 6 of Article 1233 of the Civil Code differs from under which Creative Commons operate, but it does not exclude the possibility of using free licenses "
Can we take a word? Will we be satisfied that they give a "tooth" instead of guarantees, that their innovations will not interfere with free licenses at all? What then to do with the courts (which have not yet fully figured out the current rules of the game)?
I don’t know about the mass rallies, the shutdown of the Russian Wikipedia ... I think Medvedev still will not bring it to this.
You can familiarize yourself with the entire history of amendments to the Civil Code on Wikipedia .
Download the bill , we will continue to study together in the comments.
UPD : The
new version of the Civil Code of Russia can be submitted to the State Duma in the spring : “The amendments, in particular, relate to additional measures to protect the rights of Russian entrepreneurs.”
The head of state is ready to submit a new version of the document for consideration by the parliament in the spring session.
“I hope that this document can play its role in this way, ensuring the proper dynamism of the development of our economy, and at the same time preserving the traditions that have been characteristic of our legal system in the last 200 years.
I hope that this document will be finally finalized on all the nuances to the end in the very near future, and I will be ready to submit it to the State Duma for subsequent consideration. ”
“A very wide circle of experts was involved in the discussion of this document, which was quite representative, which allows us to really hope that the result of this discussion reflects at the moment all the best that is in Russian legal practice and legal thought.”
“A rather serious contribution has been made to ensuring the law of obligations, that is, in fact, property turnover, transactions, contracts, that is, everything due to which there is an economic turnover in Russia today. Taking into account the interests of the Russian economy, this seems to be an extremely important step for investors in the Russian economy - both domestic and foreign.
This is a very important signal that replenishes the legal and legal tools with new opportunities that today come to the service of those who invest in Russia, conduct business, and entrepreneurial activity. But, I repeat, both for entrepreneurs and for citizens who do not conduct entrepreneurial activities, but simply live their normal, normal lives, the code provides new opportunities, new comfortable conditions in order to effectively exercise their rights. ”