"The right of the manufacturer of the database": what is it?
The fourth part of the Civil Code regulating relations in the field of “intellectual property” repeats the overwhelming majority of the norms contained in those laws that were before it: “ On copyright ...”, Patent law , law “ On the legal protection of computer programs ... ", and others.
Its entry into force was accompanied by a discussion on the Internet, the participants of which for some reason thought that the new part of the Civil Code “tightened the protection of copyright”, however, these opinions had no basis. There are relatively few fundamental changes in the chapters on copyright. But the fact that the fourth part really "tightened" - so this regulation of related rights , primarily through the introduction of their new types. “ Adjacent ” are those rights that are associated not with the creation of a work, but by bringing it to the audience. For example, the poet and the composer are the authors of the song, but the performer of this song and the producer of its soundtrack have adjacent rights .
Often, copyright and related rights are confused, but it is better to distinguish between them. For example, the fourth part of the Civil Code introduces the so-called “adjacent right of a publisher”, according to which a person who first published a work receives the right to limit its use for a period of twenty-five years - even if the protection period of this work has long expired and it went into public domain. Next to this right is the “ right of the database producer ”, which we now talk about ...
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But first of all, let's understand what databases are and how they are protected. Article 1260 of the Civil Code enshrines the concept of “composite work” and “database”. Thus, databases are protected primarily by copyright, but - only if the selection and arrangement of materials in them is the result of creative work.
Copyright protection only works that are the result of creative activity - this is one of the general principles of copyright, it is enshrined in article 1257 of the Civil Code. However, there are many computer databases, the filling of which no creativity is not manifested. For example, legal frameworks should contain as many normative acts of a certain category as possible, ideally, everything. Which one the user may need, the drafters do not know, and if they are creatively excluded from the selection, nothing good will come of it, of course. At the same time, the texts of normative acts are not protected by copyright. In the general case, the base in which everything is included cannot be protected by copyright. There is no place for self-expression.
There is another kind of bases that are not the result of creativity. Moreover, when they are created, no “selection and location” occurs at all. These are sites with so-called “user-generated content” whose users themselves can publish something on them. The site owner in the general case simply provides them with a “platform” for such publication, and removes topics that violate the rules of behavior. There is also no copyright protection applicable. But the protection of the adjacent " law of the manufacturer " - is fully applicable. In the event that the selection of records in the database is creative, the base is also protected by copyright.
This related right is described in the fifth paragraph of Chapter 71 of the Civil Code. The manufacturer of the database, in accordance with the law, is “the person who organized the creation of the database and the work of collecting, processing and arranging its constituent materials”. In other words, this is just an organizer, he himself may not take any part in the preparation of the base.
This exclusive right does not extend to any database, but only to the one whose creation required “substantial financial, material, organizational or other costs”. By default, such a database is considered to be one that contains at least ten thousand records - “in the absence of evidence to the contrary.” You can try to prove "other" - for example, the fact that, although there are fewer materials in the database, its creation nevertheless required "substantial costs." Or vice versa, the absence of such costs even for a base in which there are more than ten thousand records. It all depends on the specific circumstances of the case and the discretion of the court.
Article 1334 speaks of the very “right of the database compiler.” It means “the exclusive right to extract materials from the database and to carry out their subsequent use in any form and by any means”. But this does not mean that now you can not save to disk the desired law from the reference system. Because “extraction of materials” is not a simple extraction, but “transferring the entire contents of a database or a substantial part of its constituent materials to another information carrier using any technical means and in any form.” This is also recorded in article 1334. If the entire base is extracted, then questions should not be. But if part of the materials is transferred to another carrier, then there may be a debate as to whether this part is “substantial”. This question is also left to the discretion of the court.
The “exclusive right of the manufacturer of the database” means not only the “extraction” of materials, but also “subsequent use”, which can even be understood as saving a copy to a disk (in terms of GC, “reproduction”). In addition, article 1273 of the Civil Code, which speaks of copying works for personal purposes, prohibits copying “databases or their essential parts” in this way. But this applies only to those bases that are protected by copyright: the third paragraph of Article 1334 permits to extract materials from “non-creative” bases and use them “for personal, scientific, educational and other non-commercial purposes to the extent justified by the specified purposes”. Well, at least some relief.
Well, one more restriction: “The use of materials extracted from the database in a manner that implies access to an unlimited number of persons should be accompanied by an indication of the database from which these materials are extracted.” That is, putting the law taken online from the legal framework, do not forget to specify which one. After this, claims to you will not.
The manufacturer’s related right arises at the time of its completion and is valid “for 15 years, counting from January 1 of the year following the year of its creation”. However, it is not entirely clear from what date these deadlines should be considered: there are radical lawyers who believe that any update to the database generates a new version of it. It's hard to agree with that. “The right of the manufacturer” is relatively new, and lawyers have yet to work in the courts with such scholasticism.
Speaking of courts: in spite of the fact that there is a new neighboring right for only three years, the judicial practice associated with it is slowly beginning to take shape. And quite a prominent place in its formation belongs to the site avto.ru. This site specializes in the publication of car ads. Its base is compiled by users of the site, and the ads themselves are informational messages, because they contain only the characteristics of cars. In general, the “non-creative base” is in its pure form.
On the account of Avto.ru LLC there are as many as two lawsuits in which they accused opponents of violating their “right to the manufacturer of the database”. They were connected with the same program to extract ads from the site. The program was written by LLC “Simple Software”, and distribution - LLC “Alpha”. Both claims were considered on the same day and in both cases the plaintiffs were denied. The first lawsuit was filed with the seller of the program. Avto.ru demanded no less than “releasing a new version of the program in which the use of materials from the Database on the sale of vehicles on AUTO.RU would be discontinued, as well as publish a court decision and report the coordinates of all buyers of the program. Well, this is in addition to the monetary requirements in the amount of one million.
However, the lawsuit was completely denied. According to the court, the plaintiff did not even prove that he purchased the CD with the program from the respondent. In addition, Avto.ru did not provide evidence that the defendant retrieved a substantial part of the database. And finally, the main reason is that the site avto.ru has existed since 1998, and the new “right of the manufacturer” can only be applied to the bases created after its introduction, that is, starting only from 2008, when the fourth part GC entered into force. Such explanations are contained in paragraph 46 of the Resolution of the Plenum of the RF Armed Forces No. 5 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 29. For the same reasons, the second lawsuit was also refused, with the same requirements imposed on the program developers. Adjacent law, according to the court, can only violate the very extraction and use of materials, but not the creation of tools for this.
Another interesting case is the claim of the property management committee of the city of Snezhinsk, Chelyabinsk Region, against LLC Firma Klon. The lawsuit was filed “for the recovery of property from another’s illegal possession”, although the database acted as “property”. It contained information on the privatization of residential premises and, according to the plaintiff, was created by its employees, and then transferred to the employees of the LLC who carried out its maintenance. The consideration of the claim rested on the question of who is the organizer of the creation of the database - and the committee simply could not prove that the base was created by its employees.
He couldn’t provide the technical task, the description of the base, or the testimony of the court. The lawsuit was denied. Moral: be careful about the documents confirming your right to "intellectual property." In general, while the judicial practice for potential owners of the “adjacent rights of the manufacturer of the database” is disappointing ...
Its entry into force was accompanied by a discussion on the Internet, the participants of which for some reason thought that the new part of the Civil Code “tightened the protection of copyright”, however, these opinions had no basis. There are relatively few fundamental changes in the chapters on copyright. But the fact that the fourth part really "tightened" - so this regulation of related rights , primarily through the introduction of their new types. “ Adjacent ” are those rights that are associated not with the creation of a work, but by bringing it to the audience. For example, the poet and the composer are the authors of the song, but the performer of this song and the producer of its soundtrack have adjacent rights .
Often, copyright and related rights are confused, but it is better to distinguish between them. For example, the fourth part of the Civil Code introduces the so-called “adjacent right of a publisher”, according to which a person who first published a work receives the right to limit its use for a period of twenty-five years - even if the protection period of this work has long expired and it went into public domain. Next to this right is the “ right of the database producer ”, which we now talk about ...
')
What is protected by the “manufacturer’s right”?
But first of all, let's understand what databases are and how they are protected. Article 1260 of the Civil Code enshrines the concept of “composite work” and “database”. Thus, databases are protected primarily by copyright, but - only if the selection and arrangement of materials in them is the result of creative work.
Copyright protection only works that are the result of creative activity - this is one of the general principles of copyright, it is enshrined in article 1257 of the Civil Code. However, there are many computer databases, the filling of which no creativity is not manifested. For example, legal frameworks should contain as many normative acts of a certain category as possible, ideally, everything. Which one the user may need, the drafters do not know, and if they are creatively excluded from the selection, nothing good will come of it, of course. At the same time, the texts of normative acts are not protected by copyright. In the general case, the base in which everything is included cannot be protected by copyright. There is no place for self-expression.
There is another kind of bases that are not the result of creativity. Moreover, when they are created, no “selection and location” occurs at all. These are sites with so-called “user-generated content” whose users themselves can publish something on them. The site owner in the general case simply provides them with a “platform” for such publication, and removes topics that violate the rules of behavior. There is also no copyright protection applicable. But the protection of the adjacent " law of the manufacturer " - is fully applicable. In the event that the selection of records in the database is creative, the base is also protected by copyright.
What is the "right of the manufacturer"
This related right is described in the fifth paragraph of Chapter 71 of the Civil Code. The manufacturer of the database, in accordance with the law, is “the person who organized the creation of the database and the work of collecting, processing and arranging its constituent materials”. In other words, this is just an organizer, he himself may not take any part in the preparation of the base.
This exclusive right does not extend to any database, but only to the one whose creation required “substantial financial, material, organizational or other costs”. By default, such a database is considered to be one that contains at least ten thousand records - “in the absence of evidence to the contrary.” You can try to prove "other" - for example, the fact that, although there are fewer materials in the database, its creation nevertheless required "substantial costs." Or vice versa, the absence of such costs even for a base in which there are more than ten thousand records. It all depends on the specific circumstances of the case and the discretion of the court.
Article 1334 speaks of the very “right of the database compiler.” It means “the exclusive right to extract materials from the database and to carry out their subsequent use in any form and by any means”. But this does not mean that now you can not save to disk the desired law from the reference system. Because “extraction of materials” is not a simple extraction, but “transferring the entire contents of a database or a substantial part of its constituent materials to another information carrier using any technical means and in any form.” This is also recorded in article 1334. If the entire base is extracted, then questions should not be. But if part of the materials is transferred to another carrier, then there may be a debate as to whether this part is “substantial”. This question is also left to the discretion of the court.
The “exclusive right of the manufacturer of the database” means not only the “extraction” of materials, but also “subsequent use”, which can even be understood as saving a copy to a disk (in terms of GC, “reproduction”). In addition, article 1273 of the Civil Code, which speaks of copying works for personal purposes, prohibits copying “databases or their essential parts” in this way. But this applies only to those bases that are protected by copyright: the third paragraph of Article 1334 permits to extract materials from “non-creative” bases and use them “for personal, scientific, educational and other non-commercial purposes to the extent justified by the specified purposes”. Well, at least some relief.
Well, one more restriction: “The use of materials extracted from the database in a manner that implies access to an unlimited number of persons should be accompanied by an indication of the database from which these materials are extracted.” That is, putting the law taken online from the legal framework, do not forget to specify which one. After this, claims to you will not.
The manufacturer’s related right arises at the time of its completion and is valid “for 15 years, counting from January 1 of the year following the year of its creation”. However, it is not entirely clear from what date these deadlines should be considered: there are radical lawyers who believe that any update to the database generates a new version of it. It's hard to agree with that. “The right of the manufacturer” is relatively new, and lawyers have yet to work in the courts with such scholasticism.
Pioneers on cars
Speaking of courts: in spite of the fact that there is a new neighboring right for only three years, the judicial practice associated with it is slowly beginning to take shape. And quite a prominent place in its formation belongs to the site avto.ru. This site specializes in the publication of car ads. Its base is compiled by users of the site, and the ads themselves are informational messages, because they contain only the characteristics of cars. In general, the “non-creative base” is in its pure form.
On the account of Avto.ru LLC there are as many as two lawsuits in which they accused opponents of violating their “right to the manufacturer of the database”. They were connected with the same program to extract ads from the site. The program was written by LLC “Simple Software”, and distribution - LLC “Alpha”. Both claims were considered on the same day and in both cases the plaintiffs were denied. The first lawsuit was filed with the seller of the program. Avto.ru demanded no less than “releasing a new version of the program in which the use of materials from the Database on the sale of vehicles on AUTO.RU would be discontinued, as well as publish a court decision and report the coordinates of all buyers of the program. Well, this is in addition to the monetary requirements in the amount of one million.
However, the lawsuit was completely denied. According to the court, the plaintiff did not even prove that he purchased the CD with the program from the respondent. In addition, Avto.ru did not provide evidence that the defendant retrieved a substantial part of the database. And finally, the main reason is that the site avto.ru has existed since 1998, and the new “right of the manufacturer” can only be applied to the bases created after its introduction, that is, starting only from 2008, when the fourth part GC entered into force. Such explanations are contained in paragraph 46 of the Resolution of the Plenum of the RF Armed Forces No. 5 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 29. For the same reasons, the second lawsuit was also refused, with the same requirements imposed on the program developers. Adjacent law, according to the court, can only violate the very extraction and use of materials, but not the creation of tools for this.
Another interesting case is the claim of the property management committee of the city of Snezhinsk, Chelyabinsk Region, against LLC Firma Klon. The lawsuit was filed “for the recovery of property from another’s illegal possession”, although the database acted as “property”. It contained information on the privatization of residential premises and, according to the plaintiff, was created by its employees, and then transferred to the employees of the LLC who carried out its maintenance. The consideration of the claim rested on the question of who is the organizer of the creation of the database - and the committee simply could not prove that the base was created by its employees.
He couldn’t provide the technical task, the description of the base, or the testimony of the court. The lawsuit was denied. Moral: be careful about the documents confirming your right to "intellectual property." In general, while the judicial practice for potential owners of the “adjacent rights of the manufacturer of the database” is disappointing ...
Source: https://habr.com/ru/post/108787/
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