Self-restraint: sovereign free licenses versus ordinary. Likbez on the "problems" of licenses

Mr. Kalyatin , already known to us , who either does not understand what he is doing, or he understands, but does it on purpose, does not calm down. May 19, 2011 in the building of the Chamber of Commerce and Industry of the Russian Federation at ul. Ilyinka, d.6 passed the scientific round table “Free licenses” or self-restriction of law? ” . Within three hours, the proposed amendments to the Civil Code were discussed, namely the introduction of free licenses in Russian - the sovereign “self-restraint of law” (the same story with state registration of Linux on the Rospatent website is a fraud of the entire free software community and free culture, though now Ministry of Culture website) Mr. Kalyatin made a report in which he continued to argue that in order for licenses like Creative Commons licenses to operate in Russia, consensus in the community of specialists is not enough. “This model requires a long and complex localization.” Such a process can take several years, and the proposed alternative mechanism of “self-restriction of law” can be a good compromise solution, while the applicability of free licenses in the context of Russian law remains controversial.

For news-watchers, nothing new, but one thing about this roundtable was different. Finally, specific “problems” of licenses were named in the opinion of those who believe that they are illegal. We will dwell on them in more detail.

So, the "problems":

1. the difficulty of determining the parties to the contract (how to determine who the copyright holder is and who the user is)
2. doubts regarding compliance with legislative requirements on the form for concluding a contract (whether downloading a program from the Internet and starting to use it meets the requirements for a written contract)
3. gratuitous nature of free licenses (donation agreements between legal entities are prohibited)
4. the impossibility of limiting the personal non-property rights of the author (the author cannot refuse the right to inviolability of the work and the right to a name)

Thank God there was another lawyer who "answered the charges." Alexander Saveliev, legal adviser at IBM, does not agree that free licenses are not applicable in Russian conditions. In his opinion, all these problems can be resolved within the framework of existing legislation. For example, the uncertainty of the parties to the contract also occurs in other types of civil transactions (for example, the sale of goods using automatic machines), which does not preclude their recognition as valid, the legislative requirements for writing a contract when using free software are in principle respected, and the grounds for qualification of free licenses, especially those that require certain obligations on the part of the user, as donation agreements, are absent.

In order again with the addition of gag from me.

1. Goods are sold using machines. Who faced the machine - that and the buyer. Who is indicated as the author of the work is the copyright holder (well, in most cases and of course, with the exception of plagiarism, but this is not a license problem at all). Who uses the work, that and the user.

2. They have already spoken about the form of the agreement a million times - everything complies with the law . Now the gag. In addition, there is such a thing as business custom. On the Internet, historically, search engines have every right, without permission, to access works (texts) on websites, process them and make copies of them. We all remember that under copyright laws, without permission from the author, you cannot make copies. But here the Internet arises and the fact of placing a site on the Internet means that the author agrees with indexation. That is, not only what is allowed is indexed, but what is clearly not prohibited. If the author wants to prohibit indexing, then please in robots.txt, but by default on the Internet indexing is allowed, no matter what the laws say. Here is an example where the Internet overpowered the laws and, it seems, there were court decisions confirming this (UPD: I found " Using caching, according to the judge, is common in the online search sector"). It seems to me that if questions still arise in the situation with licenses, then you just have to agree that the" conclusion of an agreement via the Internet "is generally accepted and there is no way to escape this custom business practice, because everyone does it.

3. In fact, the prohibition of donation agreements between legal entities does not affect licenses in any way. I asked the lawyer and habrauser noirart “What do you think, does Article 575 prohibit royalty-free license agreements between commercial organizations?” He replied:

References to the fact that supposedly a gratuitous licensing agreement between commercial organizations on the basis of Article 575 of the Civil Code was banned. Somehow even the client dragged a similar conclusion from some legal office.

Clause 1 of Article 572 of the Civil Code establishes that under a gift agreement one party (donor) transfers or pledges to transfer to the other side (the donee) a thing in ownership or property right (claim) to itself or to a third party or releases or undertakes to relieve it of its property obligation in front of you or in front of a third party. And then the comrades conclude that, as long as the exclusive right is a property right by virtue of 1226 Civil Code, the rules of 575 Civil Code apply to gratuitous transactions with the results of intellectual activity.

In short, I believe this is enchanting nonsense and I consider it necessary to hit the forehead with a ruler for this.

Personally, I adhere to the following position:

1. yes, exclusive right is, by virtue of the Civil Code, a property right;

2. At present, for the transactions with the results of intellectual activity, the Civil Code uses a system of license agreements (and an agreement on the alienation of exclusive rights);

3. Clause 1 of Article 1235 of the Civil Code establishes that under a license agreement one party - the holder of the exclusive right to a result of intellectual activity or an individualization tool (licensor) grants or undertakes to provide the other party (licensee) the right to use such a result or such means to the extent provided for in the agreement ;

4. at the same time, based on the meaning of the contract, donation is not supposed to provide a counter, counter obligations (be it: the transfer of things, money, implementation of an action, etc.). If the gift agreement contains such provisions, then based on paragraph 2 of paragraph 1 of Article 572 of the Civil Code, as well as paragraph 2 of Article 172 of the Civil Code, such a contract is void, as it is a sham transaction;

5. Clause 5 of Article 1235 of the Civil Code stipulates that under a license agreement, the licensee agrees to pay the licensor the contractual remuneration, unless otherwise provided by the agreement. In other words, it directly indicates the possibility of concluding a gratuitous contract.

6. A license agreement is a bilateral agreement. In a bilateral agreement, each of the parties has rights and obligations corresponding to each other, and despite the possible free license agreement (paragraph 5 of Article 1235 of the Civil Code) this does not detract from the fact that the licensor is obliged to comply with the restrictions established by the license agreement. For example, the territory of use, the order of use, etc.

Thus, in my opinion, the far-fetched conclusion follows that a gratuitous license agreement establishing the obligations of each of the parties cannot, by virtue of paragraph 2 of paragraph 1 of Article 572 of the Civil Code, be a deed of gift, therefore, the provisions of Article 575 CC, as they relate only to the design of the gift contract.

4. The last even more enchanting delirium. First, how can this author not waive the right to inviolability of a work? And how then are the books translated into another language? After all, this is the creation of a derivative work, with which the author agrees. The same thing happens with our licenses. Secondly, no one requires the use of licenses to waive the right to a name. Moreover, Creative Commons licenses explicitly state that these licenses in no way affect personal non-property rights.

I think that I and those whom I quoted dispelled yet another misconception regarding licenses. If you still have questions, then you may find the answer via the links from here or from here .

The LordRichard, forgive Kalyatin, he does not know what he is doing.

Source:

www.cnews.ru/news/top/index.shtml?2011/05/20/440919

See also (highly recommended reading):

www.cnews.ru/news/top/index.shtml?2011/05 / 20/440919
live.cnews.ru/forum/index.php?showtopic=71277
serge-sereda.livejournal.com/6609.html
www.lawfirm.ru/forum/viewtopic.php?f=7&t=589463#p5513880

UPD :

The site privlaw.ru lined detailed comments of lawyers:

1) On the projects the introduction of rules governing "free license"
2)Comments on the concept of regulation of relations arising in connection with the free use and distribution of copyright objects proposed in the draft amendments to Part 4 of the Civil Code of the Russian Federation