How to prove your authorship on software

  • Tutorial


At the beginning of the year, we published The Case of the Year According to Lawyers , which many have read. But we did not say the main thing: what to do if the customer wants to leave you without pants?

He who is warned is armed. And do not think that this will not happen to you. Unless you are standing on the other side of the barricades and throwing your developers right and left. Then flip through this article in your stream. Now we will teach software developers how to prepare for attacks by bastards of different breeds and sizes.

Punched cards and computers


First you need to understand what the legislation thinks about it. Nevertheless, His language is somewhat different from simple human. In addition, many definitions in His dictionary appeared decades ago and have not changed much since then.

So, according to the Civil Code, any software bears the proud name of a computer program. To be recognized as such, it must meet a number of signs:
  • objective form;
  • the totality of data and commands designed for the operation of computers and other computer devices;
  • to give a certain result, including preparatory materials obtained during the development of a computer program, and the audiovisual displays generated by it.

Humble creator


With the concept of authorship, everything is simpler; over time, it has not changed its meaning. Whether we are talking about exclusive designer pots or the hadron collider, there is no difference in terms of copyright. The creator is always the original owner of all rights to the product, in our case, software.

For the occurrence of copyright no additional actions (deposit, registration) are required. Registration of the program in Rospatent (we will talk about this later) is optional.
But this is from the point of view of the law. But in reality there are cases when it is difficult to prove authorship.

Protect yourself


For example, you wrote a program at home. A year later, it turned out that someone had appropriated it and registered in Rospatent on itself. What to do?
To form the evidence base (just in case) you can do the following:
  • When you release the program on the media, indicate the year of release and the name of the author. The law establishes a presumption according to which, in the absence of evidence to the contrary, the author of a work is the person indicated as the author on the original or on a copy of the work.
  • Tag territory source code. This will be considered by the court as evidence (along with other documents / circumstances).

“... According to the conclusion of Professor of the Gyansan National University, Kim Byung Soo, as a result of the study of 138 files, it was found that only 24 contain links to the plaintiff’s rights, of which 21 files contain an indication that they were created by individuals who, according to the statement the plaintiff are his employees; 5 files contain information about the rights of the company “Daewoo Heavy Industries, Ltd.”; 6 files contain information that they were created by the programmers of the company “Daewoo Heavy Industries, Ltd.”; 43 files contain references to their creation by other persons - members of the board of the University of California, Real-Time Innovations, I. Boldyrev, V. Smolko, V. Barabvoi, V. Kireychikov .; 59 files do not contain information about who they were created at all, or about the availability of copyrights ”(see for more details Decision in case No. A40-56928 / 2004 of 02.07.2014. SIP).

  • Send yourself a registered letter with an enclosed disk with the final version of the program.
  • Escrow. Do not confuse with the publication in the public domain. We mean by this fixing the rights to software, an alternative to registration with Rospatent. This procedure can be done through a notary public or in a specialized company.

If the case comes to court, then your sources and working materials can be used as evidence, so keep them until the second coming.
“... At a new consideration, the trial court is invited to take into account the foregoing, to determine the circle of persons whose rights and interests protected by law may be affected when deciding on the merits of this dispute; invite the parties to submit the initial versions of computer programs, namely: computer programs of Credit AK Automation of cash settlements of credit cooperatives of citizens and the software product “Software package for automation of cash, accounting and tax calculations of credit cooperatives of citizens”, and also discuss the appointment in the case of a forensic examination to resolve the issue of similarities between these computer programs ”(Decision in the case No. A27-6440 / 2013 of 01/27/2015. SIP).

Job assignments


Not everyone has the good fortune of working directly from the couch, and if from the couch, then all the same “to the uncle”. Therefore, we will also take such a turn into account.
So, if the program was created in the framework of labor or civil law relations, then as additional evidence, you can use:
  • the contract;
  • technical / service assignment;
  • certificate of services rendered (reception-transmission).

We hope that it is clear that you should have such documents anyway. They must be printed, signed in duplicate by both sides and lie in the cabinet. “It is impossible to give all instructions in writing,” you say. Maybe. If you do not have enough time, hire a specially trained person. Remember that raking up problems in court will be more expensive and more difficult.
“And if the other side is in another city and does not want to sign anything?” If the game is worth the candle, then allow yourself a little weakness and sign the documents at a personal meeting with the customer and with the developers. Moreover, if they persistently do not want to sign documents, this is a very alarming bell. It is worth considering the honesty of the other side already at this stage.

Important! Indicate the identifying signs of the software in as much detail as possible in all documents; otherwise, in court, you will find that it is simply impossible to understand which program you created.

Group of authors


If there are several authors, then they are recognized as co-authors of the work and, as a general rule, use the program together. However, remember that in order to be recognized as a co-author, it is necessary to make a creative contribution to the creation of a work.
“... satisfying the counterclaims of IP ХХХ to recognize her as the co-author of the photo“ In Search of Treasures ”and denying copyright protection to Pimenova L. L., the court of first instance established that the plot, image plan in the photo were developed by M. Fedoseeva, and also, the model and details were also chosen by her, that is, thanks to the mental and intellectual activity of M. Fedoseyeva, her idea was embodied in the plot of the photograph, image, concrete image plan ”(determination in case No. 33-1581 of July 26, 2010. The Supreme Court Republic of Buryatia (Republic of Bu ire)).

Cases of recognition of co-authorship in software are often considered. And in one of these cases, the court drew attention to the need for creative contribution to the creation of the product. Moreover, a person who performed only the technical functions of control is not a co-author.
“... The reference to the order of the director of“ U *** ”No. *** dated 08/14/2006 on the correction of deficiencies and shortcomings in the program cannot be taken into account, since this order of authorship Z *** A. A. regarding the program for The computer does not confirm. On the contrary, from the contents of the said order it is seen that the program was developed by the head of the development department E *** I.P., who was ordered to eliminate the deficiencies identified in the program. Z *** A. A. as a co-author in the order is not indicated, he was only assigned the responsibility for the execution of this order. The fact that Z *** A. A. controlled the execution of the order to eliminate E *** I. P. shortcomings of the program does not give rise to recognition as its co-author of the program ”(Decision in case No. 33 - *** - 2008 of October 28, 2008. Ulyanovsk Regional Court).

Therefore, if your software is created by several employees (freelancers), it is worthwhile to conclude an agreement with each of them for specific works, and not to be tempted to reduce the amount of paper work and make an agreement with only one, "main" developer.

Registration in Rospatent


Register software or not - the desire of the author / copyright holder. This procedure is optional.
At the same time, you need to understand that software is registered as a literary work - this means that registration does not provide protection against possible modifications / processing - this is not patenting. This is just fixing a specific software and confirmation (no more) authorship / ownership.

It makes sense to register software in case of:
  • when you transfer it under a license agreement (in this case, communication with the tax is easier - they understand what you are transferring rights to);
  • if you attract an investor (they like additional supporting papers).

The registration procedure is simple and does not require documents confirming authorship. In contrast, by the way, from the software registry ( we recently wrote about it ). It takes up to 1.5 months and requires, in addition to the application and the fee, the provision of a fragment of the source code.
Please note that registration can be challenged by the author of the work (if you indicated yourself as an author without having the right to do so).

The long-awaited conclusions:


1. Despite the automatic occurrence of copyright in the software, it is worth laying straws and stock up on evidence.
2. When deciding to register a program with Rospatent, consider whether you need it. Registration does not protect against copying by competitors - this is not patenting.
3. When registering software with Rospatent, do not indicate yourself as the author (if you are not) - do not think that the absence of the need to provide supporting documents will save you from court.
4. If there are several authors, they are co-authors. Therefore, draw up a relationship with each of them. Do not be lazy!

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