The Author's Encouragement Program - Why the agreement was made that way
I read the topic of Vadim Kolosov with criticism of the agreement of the Program for Promoting Authors and decided that I, as the author of this document, should clarify those points that caused Vadim's questions, and therefore the others could cause the same questions.
About the subject of the contract. The choice of just such a subject is due solely to one circumstance - to make impossible the authors' claims regarding the distribution of posts on the Internet. For example, there is an author of a post who wants to earn a little by “punishing” (in court, of course) the Internet services that have placed his literary works on their pages. If such an author does not give the exclusive rights to such content completely, it is not possible to exclude the possibility of such claims within our legal field.
Regarding the "costs" that the service allegedly can reimburse at the author's expense, I would say the following: according to the contract, this is possible under one single condition: "the author withdraws his consent to the publication". This provision is also associated with the need to eliminate all possible abuse of rights by the author.
The service, in turn, having obtained exclusive rights, disposes of them, granting anyone (including the author) a license of Creative Commons Attribution 3.0 Unported (CC BY 3.0) , which means you can distribute this material. At the same time, giving the author the opportunity to choose the method of distribution without possessing the exclusive right, the service cannot guarantee the free distribution of this material. I see that only those who have the intention to limit the placement of their material can disagree with such a condition, but with regard to such people it should be said that they really should not post their materials on Habré, because this resource is for open information exchange and PPA is a reward program specifically for those materials that become free for further distribution.
')
Now regarding the price agreement: the price agreement consists of two parts - a fixed remuneration of 1000 rubles, which does not contradict the current legislation and is applied so widely that it is hardly possible to challenge this type of agreement, and a fee agreement describing a clear mechanism for calculating it in respect of each material. Let me explain why this design was chosen. If we exclude a fixed remuneration, then the authors will have the opportunity to challenge the assignment of rights and will be able, on the basis of current legislation, to abuse their rights in respect of materials for which the fee was not charged or paid.
Now about the requirements of confidentiality: in the contract there are provisions according to which you can send messages to Habr with the message “Confidential”, and Habr can do the same for authors. This is necessary, for example, for the exchange of personal data and other data, the disclosure of which may not be desirable both for you and for Habr. So I do not see anything reprehensible and, moreover, nothing illegal in the implementation of a simple mechanism for marking transmitted data with the “Confidential” stamp.
With regard to the right of translation, the requirements for the materials, in particular the absence of restrictions by third parties, are contained in the contract. Of course, I understand that the majority (including lawyers) do not have time to read the terms of the agreements, so I agree that the authors of the materials will have to “clear their rights” by themselves, and this should be done regardless of whether the material will participate in the PPA or not, so forgetting the author’s consent to translate his work should not be forgotten if you don’t participate in any incentive program.
Let us discuss the criticism of the mechanisms of acceptance. So, if you stated to the service that you read the terms of the agreement, but did not read it, these are not service problems, just as in the case of signing the agreement “on paper”. I think that I will not open America for you if I say that not more than 10% of Russians read the “paper” agreements when signing, but this does not affect the validity of these agreements. The same is true of the public offer and its acceptance. Regarding the provision of copies of documents: if the legal entity, which Habr is, will not have such copies, he will not be able to withhold taxes from you (PIT), accrue and pay “social. contributions "(former UST) and will not be able to report. Since Habr (oddly enough) pays taxes, it is not possible to ignore these requirements. Now about the penalty for not submitting documents: unfortunately, money is the only effective way to report the need to take a certain action, and if you do not provide the documents, Habr will have to incur an additional tax burden, so that the imposition of a fine in this case is justified.
Regarding the signing of the contract by Habr, I assure you - it is signed, and references in the contract to the order approving the text are sufficient, placing the same “scan” of the signature and seal of the legal entity can “push” to various kinds of attempts to falsify the company's documents. And this is nothing more than a precaution. The argument of the author on the use of analogs of a handwritten signature is not relevant in this case, since they were not used when signing the contract (the company's general director signed this text with his own hands as an annex to the signed order for the enterprise, and if the text is changed, his signature will be edition will be carried out in the same way). But if, as a tool for signing by the service, there was an analogue of a handwritten signature, there would have been many opportunities for trying to recognize such a contract as not concluded.
Let's talk about writing a contract. First, the author of the post himself previously published a completely different opinion on the observance of the written form in the legal relations of the offer-acceptance, here's a link to you: kolosov.info/kommentarii/elektronnyy-dogovor-i-dokumentooborot . I have my own point of view regarding the written form regarding the PPA agreement. So, only users of Habr can register in the PPA, which means that at the time of concluding the agreement with the agreement user (PPA participant), the offer is sent to him directly - and the address offer is accepted. And if we look at the norms of the Civil Code of the Russian Federation, we will see that compliance with the written form is considered including the acceptance of the offer (if anyone is interested, I can describe it in detail).
Regarding your duty to track changes - such a duty does not contradict the current legislation and, moreover, embodies world practice in this matter. If the relationship of the service with all users is the same, and there are no preferences (as in our case), the company has the opportunity to publicly announce changes, determining the location of such changes. It is extremely difficult to recognize this provision as non-compliant with legislation, since there are no direct legal restrictions on such actions in legislation, and the widespread use of such mechanisms for changing agreements is already a business practice (and therefore, a fully capable design).
Regarding the place of settlement of disputes - here I “cuddle my head with ashes” and admit it - “I didn’t finish looking”. Thanks for pointing out the error.
With regard to the scope of the agreement and the inclusion in its text of terminology and provisions on force majeure, etc. It is no secret to anyone, from my point of view, these provisions are organically included and do not interfere with the perception of the agreement as a holistic document that does not require additional references. But with the unsettledness of these moments it may be so formed that the legislator will enter these terms himself (naturally, not quite as it really is) and the inclusion of terminology will allow us to leave the contract unchanged and not distort its form with distorted quasi-definitions and terms.
FINDINGS:
In my opinion, the balance of interests in the contract is respected, and its provisions are aimed precisely at ensuring that the agreements are inviolable and that there is no abuse of the right. To accept it or not is your right.
About the subject of the contract. The choice of just such a subject is due solely to one circumstance - to make impossible the authors' claims regarding the distribution of posts on the Internet. For example, there is an author of a post who wants to earn a little by “punishing” (in court, of course) the Internet services that have placed his literary works on their pages. If such an author does not give the exclusive rights to such content completely, it is not possible to exclude the possibility of such claims within our legal field.
Regarding the "costs" that the service allegedly can reimburse at the author's expense, I would say the following: according to the contract, this is possible under one single condition: "the author withdraws his consent to the publication". This provision is also associated with the need to eliminate all possible abuse of rights by the author.
The service, in turn, having obtained exclusive rights, disposes of them, granting anyone (including the author) a license of Creative Commons Attribution 3.0 Unported (CC BY 3.0) , which means you can distribute this material. At the same time, giving the author the opportunity to choose the method of distribution without possessing the exclusive right, the service cannot guarantee the free distribution of this material. I see that only those who have the intention to limit the placement of their material can disagree with such a condition, but with regard to such people it should be said that they really should not post their materials on Habré, because this resource is for open information exchange and PPA is a reward program specifically for those materials that become free for further distribution.
')
Now regarding the price agreement: the price agreement consists of two parts - a fixed remuneration of 1000 rubles, which does not contradict the current legislation and is applied so widely that it is hardly possible to challenge this type of agreement, and a fee agreement describing a clear mechanism for calculating it in respect of each material. Let me explain why this design was chosen. If we exclude a fixed remuneration, then the authors will have the opportunity to challenge the assignment of rights and will be able, on the basis of current legislation, to abuse their rights in respect of materials for which the fee was not charged or paid.
Now about the requirements of confidentiality: in the contract there are provisions according to which you can send messages to Habr with the message “Confidential”, and Habr can do the same for authors. This is necessary, for example, for the exchange of personal data and other data, the disclosure of which may not be desirable both for you and for Habr. So I do not see anything reprehensible and, moreover, nothing illegal in the implementation of a simple mechanism for marking transmitted data with the “Confidential” stamp.
With regard to the right of translation, the requirements for the materials, in particular the absence of restrictions by third parties, are contained in the contract. Of course, I understand that the majority (including lawyers) do not have time to read the terms of the agreements, so I agree that the authors of the materials will have to “clear their rights” by themselves, and this should be done regardless of whether the material will participate in the PPA or not, so forgetting the author’s consent to translate his work should not be forgotten if you don’t participate in any incentive program.
Let us discuss the criticism of the mechanisms of acceptance. So, if you stated to the service that you read the terms of the agreement, but did not read it, these are not service problems, just as in the case of signing the agreement “on paper”. I think that I will not open America for you if I say that not more than 10% of Russians read the “paper” agreements when signing, but this does not affect the validity of these agreements. The same is true of the public offer and its acceptance. Regarding the provision of copies of documents: if the legal entity, which Habr is, will not have such copies, he will not be able to withhold taxes from you (PIT), accrue and pay “social. contributions "(former UST) and will not be able to report. Since Habr (oddly enough) pays taxes, it is not possible to ignore these requirements. Now about the penalty for not submitting documents: unfortunately, money is the only effective way to report the need to take a certain action, and if you do not provide the documents, Habr will have to incur an additional tax burden, so that the imposition of a fine in this case is justified.
Regarding the signing of the contract by Habr, I assure you - it is signed, and references in the contract to the order approving the text are sufficient, placing the same “scan” of the signature and seal of the legal entity can “push” to various kinds of attempts to falsify the company's documents. And this is nothing more than a precaution. The argument of the author on the use of analogs of a handwritten signature is not relevant in this case, since they were not used when signing the contract (the company's general director signed this text with his own hands as an annex to the signed order for the enterprise, and if the text is changed, his signature will be edition will be carried out in the same way). But if, as a tool for signing by the service, there was an analogue of a handwritten signature, there would have been many opportunities for trying to recognize such a contract as not concluded.
Let's talk about writing a contract. First, the author of the post himself previously published a completely different opinion on the observance of the written form in the legal relations of the offer-acceptance, here's a link to you: kolosov.info/kommentarii/elektronnyy-dogovor-i-dokumentooborot . I have my own point of view regarding the written form regarding the PPA agreement. So, only users of Habr can register in the PPA, which means that at the time of concluding the agreement with the agreement user (PPA participant), the offer is sent to him directly - and the address offer is accepted. And if we look at the norms of the Civil Code of the Russian Federation, we will see that compliance with the written form is considered including the acceptance of the offer (if anyone is interested, I can describe it in detail).
Regarding your duty to track changes - such a duty does not contradict the current legislation and, moreover, embodies world practice in this matter. If the relationship of the service with all users is the same, and there are no preferences (as in our case), the company has the opportunity to publicly announce changes, determining the location of such changes. It is extremely difficult to recognize this provision as non-compliant with legislation, since there are no direct legal restrictions on such actions in legislation, and the widespread use of such mechanisms for changing agreements is already a business practice (and therefore, a fully capable design).
Regarding the place of settlement of disputes - here I “cuddle my head with ashes” and admit it - “I didn’t finish looking”. Thanks for pointing out the error.
With regard to the scope of the agreement and the inclusion in its text of terminology and provisions on force majeure, etc. It is no secret to anyone, from my point of view, these provisions are organically included and do not interfere with the perception of the agreement as a holistic document that does not require additional references. But with the unsettledness of these moments it may be so formed that the legislator will enter these terms himself (naturally, not quite as it really is) and the inclusion of terminology will allow us to leave the contract unchanged and not distort its form with distorted quasi-definitions and terms.
FINDINGS:
In my opinion, the balance of interests in the contract is respected, and its provisions are aimed precisely at ensuring that the agreements are inviolable and that there is no abuse of the right. To accept it or not is your right.
Source: https://habr.com/ru/post/117713/
All Articles