Who are we: creators or artisans? Says the law ...

    Good day to all ...
    It would not seem that such reasoning is not the place "here", but nevertheless, it seems to me that some of my colleagues will find the following described interesting ... At least in the environment of "our brother" curiosity is something natural, and even to some extent unifying.


    Let's digress for some indefinite, but obviously small time. We will listen to the spirit of the times, the reasoning and ideas of pundits (and not only husbands) about what is our profession and what is the result of our work with you, how to deal with it, who to pay , how to protect.

    Let’s imagine for a second two, of course, our colleagues, here they are sitting at a table in a restaurant: laptop, tablet, coffee, everything as usual, it was thousands and hundreds of times ... but no, this time they will come together not for life but for death in a holy battle in a dispute that somehow does not initially imply anyone's victory in it, the main thing is the process, and what kind of question do they have on the agenda?

    and now we are so close that we can hear what they’re talking about ...

    “It's not new, you know?” Not original. Probably the majority of professionals ask this question with constant frequency, here you are, as far back as 2004, the artists were tortured, and here the advertisers argue, wow the players :) heh ... okay, this is so offhand. Well, will we chase water from empty to empty, but what's the point?
    “Well, I'm fully armed today.” (opening a selection of links and documents on the screen)
    - Was it getting ready?
    - And then ... (intonation betrays sarcasm) Are we law-abiding?
    - What do you mean?
    “And you know, they have already thought for us, and by the way for quite some time.” Listen, make yourself comfortable, and order some more coffee, I’ll come from far away ...


    - Initially, at the dawn of the existence of computers, the concepts of “software” and “hardware” were not differentiated, since data processing devices were perceived, at that time (in 1940-1950) as a single unit, they were sold exactly like that, and their elements could not become the subject of separate agreements and were a commercial secret.
    The owners of the programs during this period were large computer manufacturers interested in maintaining their full control over the new invention and using the familiar tools of patent law and legal protection of trade secrets.
    The beginning of the widespread penetration of technology into society led to the first attempts to consider the problem from a legal point of view. The World Intellectual Property Organization convened a group of experts on this issue for the first time in 1978, and “Model Provisions for the Protection of Computer Software” were prepared, which were proposed to national legislators as a model for developing relevant legislation. These provisions consisted of nine sections containing definitions of the basic terms, fundamental rights to the software and the conditions for their occurrence, as well as the period of validity and possible compensation.
    Meanwhile, it is worth noting that those discussing this issue decided unanimously that both the computer programs themselves and all the other results of the software creation process (analysis and definition of the problem, system development, coding, documentation) meet the requirements that are required by law, legal theory to the concept of " work ": they are the result of the creative activity of the author and are expressed in an objective form.

    - And here I seem to have begun to understand what you are driving towards ... (smiling)
    - Listen, listen, this is only the beginning. So ...

    In Russia, computer programs and databases as copyright objects first appeared in the legislation in 1991, when the Foundations of Civil Law of the USSR and the Republics were adopted. This decision was enshrined in the Foundations of Civil Legislation of the USSR and the Republics of 1991, as well as in Art. 1 of the Law of the USSR dated 05/31/1991 No. 2213-1 "On inventions in the USSR" (many of whose provisions reproduce the provisions of the European Patent Convention), which indicated that computer algorithms and programs are not recognized as inventions, and together it was decided not to allocate computer programs and databases data as separate objects of intellectual property, and to use to regulate the legal relations connected with it - the right by analogy, the works of art and literature are chosen by analogy,

    - Well, how do you like the “pitch”? Works of art and literature ... in my opinion, “Who are we: creators or artisans?” - it fell away by itself, since the result of our work is defended as art, therefore it is it, therefore we are creators! I agree?!
    - Well, it’s hard to argue here, although ...
    - (interrupts) And right ... since it’s too early to argue, listen further ...

    The current Civil Code of the Russian Federation also fixes the position that computer programs can be copyrighted, but not patent law, they are not considered works of literature, but are only protected as such (Articles 1259, 1261, 1350 of the Civil Code of the Russian Federation).

    - Come on! What is it like ?!
    - And so, they are not considered works of literature, but are protected as such.
    - And what does it do?

    The legislator proceeds from the evidence that computer programs can respond to the signs of copyrighted objects, they can be created by a person’s creative work (this sign follows from the provisions of Articles 1228, 1257 and 1259 of the Civil Code of the Russian Federation) and are expressed in an objective form (this sign follows from the paragraph of the first article 1259 of the Civil Code of the Russian Federation).
    Obviously, the fact that in most foreign countries this issue was resolved in a similar way and the establishment of a different order in the Russian Federation would exclude our state from the international protection system was of importance in choosing the copyright protection of computer programs in Russia.
    While in Russia during the period of the Law on Copyright the contents of the database as a set of data were not protected, in the countries of the European Union by the Directive of 1996 two types of protection of databases were established. The database as a creatively created collection of works, data or other independent elements, set out in a systematic or methodical manner and accessible in electronic or other form ”is subject to protection in accordance with copyright law ... However, in addition to the contents of the database, its copyright legal protection introduced the law "sui generis" (special law). Now, the domestic legislator has nevertheless determined the protection of databases, in contrast to the data included in its composition separately,Databases are subject to protection, the receipt, verification or presentation of which required substantial investment in terms of quantitative or qualitative indicators .

    - Quantitative and high-quality investments ... this is the first bias, any result of handicraft labor is evaluated in this way.
    - Well ... Databases and computer programs are practically inseparable, meanwhile they are guarded separately, but this is not the main thing, I’m confusing you so to speak, "confuse ... listen further ...

    The so-called literary program components are included in the protected program elements , which includes the source text (code that is in a readable form understandable to the programmer) and object code.
    There is a point of view that the protection of object code by copyright rules is not entirely traditional, since works are usually expressed in a form understandable to humans, while the object code is in machine-readable form and is understandable only to a computer.
    At the same time, it seems that computer programs in this part can be compared with such copyright objects as music recordings. The source text is similar to a musical score, which can only be read by persons with special knowledge, and the object code understandable only to a computer is similar in nature to the sound recording of a musical work, which can only be converted into a form intelligible by a special device (musical instrument, playback device).

    - Well, damn it, they also dragged music here ...
    - Well, it's not like the music itself, it’s like analogies, I won’t bore you with monologues anymore, but I’ll just say that the topologies of integrated circuits, my dear DIY lover (smiles), are examined and protected law, like works of architecture, which is hard to call art.
    And now we argue, my dear friend ...

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