Wanted author of the program, or is the programmer always = author?

Warning : The
questions of determining the copyright holder are the most heated, therefore, reading the proposed article is dangerous for ChSZ and the invariability of the picture of the world. The article has more questions than answers, and I propose to take it more as an occasion for discussion, and not the last truth. What is the kindling question ...

At first glance, the answer seems obvious: of course, the author will be the programmer who wrote the code.

By law, the author becomes the "primary" copyright holder of the program (Article 1228 of the Civil Code of the Russian Federation) and, therefore, may be remunerated for the alienation of rights or the granting of a license.

Let us ask ourselves seditious question: is this really so? At least is this always the case?

Let's dig a little deeper and see.

By law, the author is a citizen whose creative work created the work. What is creative work? There is no exact answer in the law. Let us turn to doctrine and jurisprudence. From the decisions of the courts and articles of scientists, we can conclude that the creation of something new and original is recognized as a creative activity.

What can be new and original in the program?

Here you need to understand what the program consists of. Moreover, we should focus not on the essential understanding of the specialist, but on the wording of the law that gives legal protection to such an object of intellectual property as a computer program.

From the point of view of the law (Article 1261 of the Civil Code of the Russian Federation), program 4 has “incarnation forms”:
- source text;
- object code;
- preparatory materials received during the development of the program;
- audiovisual displays generated by the program.

The issue of authorship should be investigated for each form.

Let's consider the possible options. If the author of the code will always be a programmer, then the customer can also be the author of preparatory materials and audiovisual displays.

In this case, it turns out that the programmer is not the author, but only the co-author or even the stenographer (only intellectual, that is, the person who provided technical assistance to the author according to the wording of paragraph 2 of paragraph 1 of article 1228 of the Civil Code of the Russian Federation). After all, no one denies that the author of the novel "War and Peace" - L.N. Tolstoy, and not his long-suffering wife, who rewrote the text dictated 9 times.

Therefore, the issue of authorship of the program is not so simple. The author of the program can be not only a “programmer-stenographer”, but also a problem director.

Just how do we define this?

I think the main evidence will be the terms of reference. By the volume of the technical task that the Customer will prepare, and its relationship with the finished product, we can objectively establish: what creative contribution to the creation of the program the Customer made and to what extent, and how much creativity the programmer made.

In order not to step on the rake, we will agree on the shore ...

In this situation, it is best to resolve the issue of authorship in an author’s contract to create a program. If the parties to the agreement immediately fix the conditions on specific creative contributions and the distribution of rights, then this will also prove the emergence of the rights of the parties and even their distribution.

Thus, the issue of authorship should be put in a separate clause in any agreement and indicated:
- what materials are transferred by the customer to create the program;
- who is the author of these materials and how authorship will be taken into account in the finished product;
- how and to what extent the customer can influence the creation of the program, what instructions should be followed, how do they affect authorship issues;
- what distribution of shares in the right to the finished product will be established as a result of the execution of the contract.

Z.Y. Correct discussion of the issue is welcome in the comments. Perhaps the collective brain will be able to develop authorship criteria for the program.

(c) Kirill Mityagin

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