September 10, 2015 at 14:14How to rent a site
- Tutorial
Often you have to deal with a situation when a domain name is registered to an individual (one of the business owners), the development of the site was financed from the organization’s account with working capital, and the site is used in the commercial activities of another company.
Periodically, customers are asked to translate the relations of the parties into a legal channel, having drawn up a site lease agreement. However, not all so simple. What problems you may encounter when renting a site, read below.
From the point of view of Russian law and judicial practice, the site is a composite work that includes software, design elements, texts and other objects of copyright and related rights.
If we consider the matter even deeper, the site can be attributed to an information system, which includes technical means, information in databases, and information technologies that ensure its processing (including software).
The main problem with the application of a site lease agreement is the requirement of legislation on the lease of only individually defined things (Article 607 of the Civil Code of the Russian Federation).
The equipment used for hosting the site, as a rule, cannot be individualized, the software is also not a thing, unlike its carrier.
Therefore, the lease of the site is possible only in the form of a lease of software and hardware complex, which can be individualized. That is, for hosting the site, a separate server should be used, which is owned by the landlord legally (property or lease with the right to sublease).
In addition, the landlord must have the right to rent the software. If this is not a proprietary engine, the exclusive rights to which are 100% owned by the site owner, then it will not work to rent it out. In most cases, third-party site engine license agreements (CMS) contain a direct prohibition on its rental.
Thus, the lessor must have the exclusive right to the site software or the right to rent it, obtained under a license agreement with the software copyright holder.
Only under such conditions can a server with a copy of the site software installed on it (the site engine and database) be leased.
In all other cases, the site lease agreement is void as contrary to the direct indication of the law on the subject of the lease.
Due to the nullity of the lease, the parties to such a contract cannot refer to its terms and conditions in the event of civil and tax disputes.
Remember that not everything written on paper has legal force. Pay due attention to the specifics of the law.
Periodically, customers are asked to translate the relations of the parties into a legal channel, having drawn up a site lease agreement. However, not all so simple. What problems you may encounter when renting a site, read below.
From the point of view of Russian law and judicial practice, the site is a composite work that includes software, design elements, texts and other objects of copyright and related rights.
If we consider the matter even deeper, the site can be attributed to an information system, which includes technical means, information in databases, and information technologies that ensure its processing (including software).
The main problem with the application of a site lease agreement is the requirement of legislation on the lease of only individually defined things (Article 607 of the Civil Code of the Russian Federation).
The equipment used for hosting the site, as a rule, cannot be individualized, the software is also not a thing, unlike its carrier.
Therefore, the lease of the site is possible only in the form of a lease of software and hardware complex, which can be individualized. That is, for hosting the site, a separate server should be used, which is owned by the landlord legally (property or lease with the right to sublease).
In addition, the landlord must have the right to rent the software. If this is not a proprietary engine, the exclusive rights to which are 100% owned by the site owner, then it will not work to rent it out. In most cases, third-party site engine license agreements (CMS) contain a direct prohibition on its rental.
Thus, the lessor must have the exclusive right to the site software or the right to rent it, obtained under a license agreement with the software copyright holder.
Only under such conditions can a server with a copy of the site software installed on it (the site engine and database) be leased.
In all other cases, the site lease agreement is void as contrary to the direct indication of the law on the subject of the lease.
Due to the nullity of the lease, the parties to such a contract cannot refer to its terms and conditions in the event of civil and tax disputes.
Remember that not everything written on paper has legal force. Pay due attention to the specifics of the law.