Settlement of legal relations between an employee and an employer when creating a service program for a computer

    As I already wrote in a previous article, a computer program is an object of copyright and is protected as a work of science, literature and art.
    If the computer program is created within the limits of the labor duties established for the employee, then such a computer program is protected as an official work (Article 1295 of the Civil Code of the Russian Federation). This means that copyright belongs to the employee, and the exclusive right (i.e. the right to use the program at one’s discretion in any way that does not contradict the law) for the computer program belongs to the employer.
    In order for the created computer program to fall under the article “Service Invention”, the employer must approve clear job descriptions of the employee, implying the creation of such a result by the employee. In addition, the phrase “the results of work created in the course of fulfilling labor duties belong to the Organization as the employer and the employee agrees to alienate the exclusive rights to the results of intellectual activity created in the course of the performance of these works in favor of the employer” is usually included in the employment contract. It is also common practice to conclude, in addition to an employment contract, an agreement on official results of intellectual activity (presented as an example, different organizations may have a different name). This contract usually indicates
    In order not to lose the exclusive right to the computer program created by the employee, the employer must know the following:
    1. If the contract on official results of intellectual activity with the employee has not been concluded, and the employee’s labor duties do not imply the creation of a computer program, the employer must writing a task to an employee to create this computer program.
    2. All contracts and assignments must be executed BEFORE the start of work, implying the creation of the result of intellectual activity.
    Upon the creation of a computer program, the employee must notify the employer. As a rule, the notification form is provided for by local regulatory legal acts. If there is no such order in the organization, then the author may submit such a notice in free form in writing.
    In order to get personal benefit from creating a computer program, the employee (the author of this computer program) must know the following:
    1. If the employer, within three years from the day when the utility for the computer was submitted to it (usually this day is the date of notification of the creation of the utility for the computer), does not start using this program for the computer, does not transfer the exclusive right to its use by another person or does not inform the author about keeping the computer program secret, the exclusive right to the utility program for the computer is transferred to the author, and the employer can use the computer program for his own needs on the conditions of Royalty-free simple (non-exclusive) license for the entire duration of the exclusive right.
    2. Copyright remuneration is not a salary and it must be paid in accordance with clause 2 of Article 1295 of the Civil Code of the Russian Federation. However, the amount of remuneration for using or disposing of a computer program (as opposed to using and disposing of an invention), as well as when the employer decides to keep the computer program secret, is not regulated by the legislation of the Russian Federation and is established by an agreement between the employee and the employer, and in case of disputes court.
    Because on "Habré" there can be freelancers and firms engaged in writing computer programs for order, I will add two general cases for the settlement of legal relations between the customer and the contractor.

    Settlement of legal relations between the customer and the contractor when creating computer programs and databases for the order

    In accordance with Art. 1296, if a computer program or database is created under an agreement the subject of which is the creation of this computer program or database (by order), the exclusive right to such a computer program or database belongs to the customer, if by agreement between the customer and the contractor (contractor) does not provide otherwise. In this case, the contractor (contractor) has the right to use this computer program or database for own needs on the basis of a gratuitous simple (non-exclusive) license for the entire duration of the exclusive right.
    If, under the terms of the contract between the customer and the contractor (contractor), the exclusive right belongs to the contractor, the customer has the right to use this computer program or database for his own needs on the basis of a free simple (non-exclusive) license for the entire duration of the exclusive right.
    The author of a custom-made computer program or database, who does not have the exclusive right to them, has the right to the same remuneration as has already been described above.

    Settlement of legal relations between the customer and the contractor when creating computer programs and databases under the contract

    In accordance with Art. 1297, if a computer program or database was created upon execution of a work contract or an R&D contract that did not directly provide for the creation of this computer program or database, the exclusive right to such a computer program or database belongs to the contractor, unless otherwise provided by agreement between the customer and the contractor (contractor). In this case, the customer has the right to use this computer program or database for his own needs under the terms of a gratuitous simple (non-exclusive) license for the entire duration of the exclusive right, even if the contractor transferred the exclusive right to another person, unless otherwise provided in the contract.
    If, under the terms of the contract between the customer and the contractor (contractor), the exclusive right belongs to the customer, then the contractor has the right to use this computer program or database for his own needs on the basis of a gratuitous simple (non-exclusive) license for the entire duration of the exclusive right.
    The author of a custom-made computer program or database, who does not have the exclusive right to them, has the right to the same remuneration as has already been described above.

    Conclusion

    In order not to infringe upon the interests of either the employer or the author when creating the utility program for computers, the following should be remembered:
    All issues related to the creation of the results of intellectual activity and the disposal of exclusive rights to them must be settled between the employee and the employer in WRITTEN WRITTEN before starting work. For the settlement of legal relations between the employer and the employee, as a rule, an employment contract, job descriptions and an agreement on official results of intellectual activity are used.
    Contribution is NOT a salary. An employee who is the author of a computer utility program has the right to remuneration for the use or alienation of this computer program and when the employer decides to keep this computer program secret, in accordance with clause 2 of Article 1295.

    PS The topic of the article does not fully correspond to the theme of the hub. Site rules restrict the placement of this article in the copyright and Dura lex hubs, so please do not consider me illiterate.

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