Legal protection of computer programs

Introduction

Due to the fact that there are a lot of programmers on Habr and having read what they write about the legal protection of programs, I decided to try to write an understandable and practically applicable article.

Definition of a computer program in accordance with the Civil Code of the Russian Federation (Part IV) (hereinafter - the Civil Code of the Russian Federation).

In accordance with article 1261 of the Civil Code of the Russian Federation, a computer program is an objective set of data and commands designed to operate computers and other computer devices in order to obtain a specific result, including preparatory materials obtained during the development of a computer program and the audio-visual materials generated by it display.
The copyright for all types of computer programs (including operating systems and software systems), which can be expressed in any language and in any form, including source code and object code, are protected in the same way as copyrights to works of literature.

How copyright is protected

In accordance with the Berne Convention (to which most countries are parties, including all the most developed, including the Russian Federation) to obtain copyright in a work (to which the computer program is equated in the Russian Federation in accordance with article 1261 of the Civil Code of the Russian Federation) in countries signatories of the Berne Convention, no formalities are required.
In civil law countries (to which the Russian Federation belongs), works are protected from the moment of creation, which, of course, leaves open the practical question of evidence in court of the fact of the creation of a work. However, it should be noted that formalities may exist in accordance with national law to protect the rights of one's own citizens. In the member countries of the Berne Convention, all rights of foreign holders from other member states of the Berne Convention are protected without formalities (no registration).

In most common law countries, fixation is a requirement: the work must be clad in writing or recorded on a specific medium.

In the Russian Federation, the effect of the exclusive right to a work (one of the components of copyright in accordance with Article 1255 of the Civil Code of the Russian Federation) is regulated by Article 1256 of the Civil Code of the Russian Federation, which does not contradict the Berne Convention.

Choosing the best way to protect the software package

1. Protection as an object of copyright.

As mentioned above, the copyright to the computer program is valid at the time of creation. To indicate the author of a computer program, as a rule, the copyright symbol (“copyright”) and the names and surnames of the authors or the name of the legal entity, as well as the date of creation (first public reproduction) are put in the source code. This is optional and does not create additional rights. It is a notice that copyright belongs to individuals (individuals) or legal (legal) entities.
In order to strengthen its position and provide a guarantee of copyright in the Russian Federation, there is state registration of computer programs. An application for state registration of a computer program should contain the following materials:

• an application for state registration of a computer program, drawn up in the established form and available for download from the FIPS website;
• addition to the application (if necessary - if several authors or copyright holders);
• deposited materials identifying a computer program, including an abstract;
• document confirming the payment of state duty.

The materials deposited, as a rule, are a printout of the source text (full or fragments) in the amount of up to 70 pages. The presentation of the deposited materials in a different form is allowed if the applicant justifies that this form provides more identification of the registered computer program. It is allowed to include in the composition of these materials preparatory materials obtained during its development, as well as the audiovisual displays generated by it in any visually perceptible form.

The abstract contains information about the authors and copyright holders, an annotation of up to 700 characters, the type of computer, the type and version of the OS, the programming language and the volume of the program. The abstract is published in the official bulletin of Rospatent.
In addition, formal requirements are presented for the design and binding of documents.
The size of the fee is 1700 rubles for an individual and 2600 rubles for a legal entity.
The term of copyright in the Russian Federation is 70 years after the death of the last author. After that, the object goes into the public domain.

2. Registration as an object of patent law (industrial property).

The objects of patent law are inventions, utility models and industrial designs (in accordance with article 1345 of the Civil Code of the Russian Federation).
In this case, we will focus on the protection of the software package as an invention or utility model. In the Russian Federation, an industrial design protects the appearance of the product, and photographs are sent among the application materials. It is noteworthy, in the USA, a sketch can be protected as an industrial design. So, at one time Google received a US patent for an industrial design that protects the thumbnail of the main page of its search engine. In Russia, this will not work. In addition, we remember how Rospatent was not bowed to Apple's attempts to patent the iPad design in Russia.

In accordance with article 1350 of the Civil Code of the Russian Federation, a technical solution is protected as an invention in any field related to a product (in particular, a device, substance, microorganism strain, plant or animal cell culture) or a method (process of carrying out actions on a material object using material means )

Thus, the legal protection of the software package as an invention is still possible in the form of a method or device. However, this will not be a pure software package, but a hardware-software complex.

Patentability conditions of the invention: the invention is granted legal protection if it is new, has an inventive step and is industrially applicable.

An invention is new if it is not known from the prior art. An invention has an inventive step, if for a specialist it does not explicitly follow from the prior art. The prior art includes any information that has become publicly available in the world before the priority date of the invention.

An invention is industrially applicable if it can be used in industry, agriculture, healthcare, other sectors of the economy or in the social sphere.

The priority date, as a rule, is the filing date of the application for an invention in FIPS.
In accordance with article 1375 of the Civil Code of the Russian Federation, an application for an invention must contain:

• an application for a patent for an invention indicating the author of the invention and the person in whose name the patent (applicant) is sought, as well as their place of residence or location;
• a description of the invention, revealing it with the completeness sufficient for implementation;
• the claims expressing its essence and based entirely on its description;
• drawings and other materials, if they are necessary for understanding the essence of the invention;
• essay.

To compile a description of the invention, it is necessary to draw up a diagram of a hardware-software complex consisting of elements and the connections between them. It is necessary to disclose the principle of action of this complex. Often in such inventions, mathematical algorithms and their influence on the operation of the hardware are given. In particular, Microsoft, IBM and other IT companies have many so-called “software” patents, which is quite logical.

What is being protected is a formula. It is necessary to approach its writing with special responsibility. In the formula, it is necessary to disclose all the features of the invention in the most “general” form so that the patent is more difficult to circumvent. There are 2 types of writing formulas - the American model and the German (classical). In German, the distinguishing part of the invention stands out. The American simply lists all the features of the invention in a list. The German model facilitates examination by an expert of the patent office, the American model facilitates the preparation of the formula for the applicant.

As for the utility model, it is, in fact, a simplified invention. As a utility model, a technical solution related to the device is protected. In contrast to the invention, the method is not patentable as a utility model.

A utility model is granted legal protection if it is new and industrially applicable. The composition of the documents that must contain an application for a utility model is the same as for an application for an invention.

The validity period of the exclusive right to an invention, utility model, industrial design and patent certifying this right shall be calculated from the date of filing the initial application for the grant of a patent to the federal executive authority for intellectual property and subject to the requirements established by this Code, is:

• twenty years for inventions;
• ten years for utility models

A patent may prematurely terminate in case of non-payment of renewal fees in specified periods or canceled altogether in case of non-compliance with patentability criteria, identified analogues with an earlier priority date and other cases.
Also in some cases, the validity of a patent may be extended.

Conclusion

Protecting a computer program (software package, operating system) as an object of copyright does not require any formal actions. Copyright is valid upon creation. In order to fix the rights, you can use state registration. In addition, state registration may be appropriate when concluding licensing agreements and participating in tenders. In such situations, evidence confirming the existence of a protected result of intellectual activity is not superfluous. The costs of legal protection are minimal, there is no need to extend the validity of the title of protection.
Obtaining a patent for an invention will provide stronger legal protection. Large IT companies patent each technology separately in order to monopolize the market and conclude licensing agreements. So, due to a strong patent office, Microsoft earns more from sales of smartphones with Android OS than from its own mobile OS only due to license fees.

However, do not forget that obtaining a patent for an invention can take from one to two years, so you need to patent at the R&D stage. A utility model can be obtained in a period of 4 to 8 months, which may be an acceptable solution to protect the business.
Obtaining a certificate of state registration, as a rule, takes 2-3 months.

PS I apologize for the lack of writing talent. I wanted to describe the methods of legal protection of software systems as briefly as possible, but in an accessible language. Maybe someone will come in handy.
PPS If it is interesting, I will write about royalties for the creation of official results of intellectual activity and the relevant practice of employer relations with inventors.