The truth about your software rights

In relations with counterparties, in order to confirm the exclusive right to computer programs or databases, as a rule, it is enough to submit a certificate of state registration issued by Rospatent.

However, this issue has a “second bottom”. Such a certificate confirms the fact of applying to Rospatent with a statement on the registration of a software product in the name of a certain person. Rospatent does not check the exclusiveness of such a person, but only makes an entry in the state register of programs and databases on the basis of the information provided. The applicant is responsible for the accuracy of such information.

Therefore, the registration of software in Rospatent does not insure 100%. Obtaining a certificate is only the final stage of registration of rights. What steps should precede registration, see under the cut.

The legally exclusive right to the software is not based on the state act on its registration and the issued certificate, such as the right to a trademark or invention, which are protected solely by virtue of registration.

In accordance with Clause 4, Article 1259 of the Civil Code of the Russian Federation, the creation, exercise and protection of copyright does not require registration of the work or compliance with any other formalities. Since the software is protected as a work, for the creation of his exclusive right, the author has enough of the fact of its creation in any objective form as a result of his creative efforts.

To confirm the existence of the exclusive right to software products for a person other than the author, you need to have a whole package of documents, the composition of which may vary depending on the basis of the alienation of the exclusive right from the author in favor of the new copyright holder.

If the program was created by the author independently and in his own interests, then the transfer of the exclusive right to it to a third party is possible on the basis of an alienation, gift or succession agreement.

When the program was written to order, it is necessary to familiarize yourself with the terms of the contract of author's order . It should be clearly stated that the exclusive right to the software created by order is fully transferred to the customer. Otherwise, it is retained by the author.

An equally common option for the emergence of the exclusive right to software products from legal entities is to create it as part of an employment relationship with the developer. In this case, the exclusive right of the employer is confirmed by the following minimum set of documents:

1) an employment contract with the author ;

2) the job description of the author, including responsibilities for creating software;

3) the source code of the computer program;

4) preparatory materials (block diagram, architecture, technical specifications, calculations, etc.)

In addition, you may need:

1) a contract with the authoron the distribution of rights to an official work, which determines the procedure for transferring rights, determining the amount and payment of royalties;

2) a regulation on the use of a corporate electronic system for setting official tasks;

3) orders to begin work on the creation of specific software;

4) confirmation of the statement of work assignment to a specific programmer to create a program;

5) a payment document (cash disbursement warrant, payment order) confirming the payment of royalties to the author.

Assess your chances of losing software rights.