PAP or PNA - that is the question
How to make 2 exclusive distribution rights with the impossibility of prohibitions.
A couple of days passed after the author’s long-awaited answer from the “Authors’ Incentive Program ”( PPA ) document, explaining the wondering questions of many readers who did not stop from the first day of publication .
In addition to minor flaws that are easy to fix in the process, there was also a major controversy: the author's work is distributed under the license CC-BY 3.0, but all rights and, therefore, the ability to revoke the license is transferred to Habra.
')
In terms of compensation, it is easy to calculate (many have already done so) that the amount of compensation is several times less than the threshold for which it is worth selling your work, but the purity of the scheme is of interest. In practice, intellectual labor is sold for an average salary or higher. But on Habré we do not have such a scheme initially. The authors expect to publish their works in other places without restrictions and enjoy all rights.
In fact, if Habr keeps the rights, it will be disadvantageous to change the license, because then he will lose confidence and with him the sources of the articles. But the authors who have lost the right to publish, theoretically, can suffer.
Therefore, readers and potential authors perceived with mistrust a contract that was turned upside down, in which the author loses rights and obtains a license under which he can use the work in the hope that the license will not be canceled. It is obvious that the rights of the authors are seriously violated, in connection with which it was called the “Program of the Punishment of Authors” ( PNA ).
But - strangely enough, the author of the document continues to consider relations built in a similar way to be normal, explaining that "only in this way are the interests of the party protected as much as possible," emphasizing that there are no other ways within the legal space of the Russian Federation.
Let's try to figure out the question and find your answer.
The essence, as it turns out, is that the legislation does not have a simple scheme for the possibility of the simultaneous distribution of a work by two persons without the possibility of its prohibitive arbitrary exclusive rights. There are exclusive rights, several types, but there is no voluntary deprivation of the right to ban or change the method of licensing.
What is an exclusive right?
As far as can be judged by the experience of contracts between people and organizations, the following rules should be followed in contracts: no need to build structures that do not reflect the essence of the relationship. All the tricks - from the evil one. And this is exactly how the partner’s proposals will be perceived by others: if the partner “muddies the water” in obvious things - therefore, it’s unclean, it means that it should be perceived with caution.
It is likely that the law firm and contractor that made the contract has very honest and respectable relations with the direct customer - the Habr administration. She did not want to spoil the reputation of the customer, but, on the contrary, she tried with all her might to make an excellent and (almost) unprecedented contract of remuneration for publications on a network resource. Undoubtedly, all technical aspects are well developed. In the article “The Author's Encouragement Program - why the agreement was made that way”, the seneschal author described many of the features and justifications for them: 1000 rubles of a “gift”, which in difficult cases acts as an advance on the next unpaid article, proper separation of tax payment duties, the need to submit copies . We all want it to work. After all, the more effective the work of the authors, the more interesting and useful it will be to read Habr.
But there is a moment casting a shadow on the purity of intentions that many readers immediately saw almost immediately after publication.
The drafter of the document put the administration of Habr in an unpleasant position, causing puzzled questions about both errors and conscious distortions of the essence of Habr's relations with the authors. Even deniskin was forced to make excuses to readers that they wanted to put into practice a good idea without backward black thoughts, but received the distrust of users because of the author’s and the publisher’s upside-down relationship. And the excuse was that lawyers insisted that the PPA Treaty should be just that and not different.
Now let's see whether it is possible to make the contract differently and so that Habr is no less legally protected in the publication of works written for him.
Relations are governed by art. 35 of the Law "On Copyright and Related Rights". www.businesspatent.ru/article/article.19.7.html and the Civil Code of the Russian Federation in terms of protection and transfer of copyright.
There is a curious point:
The possibility of transfer in the future referred to in paragraph 1 of Article 1234 of the Civil Code of the Russian Federation (“transfers or undertakes to transfer the exclusive right belonging to it”), as well as the “Copyright Law, Article 33, the author’s contract of order” contradicts this copyright clause, therefore possibility is controversial and cannot be considered reliable. But the main focus was on ensuring reliability. Moreover, Article 33 talks about the transfer of the work, and not the rights to the work. There is also “the Civil Code of the Russian Federation, art. 1288, the contract of author's order”, which provides for the transfer of rights in the future. The only problem is that Habr DOES NOT ORDER articles, but only determines the subject matter and controls the content. Probably, this problem explains the “far-fetched” position in the PPA:
Now let's see which partial transfer of rights is practiced in the Russian Federation.
www.prpc.ru/booklet2/02.shtml
And yet (importantly) we see a loophole in which it is possible to reach a state when the license to use cannot be changed by anyone. We look at
It means that it is enough to transfer to someone exclusive rights (for distribution and publication) temporarily (as described in the quotation above), with the obligation to transfer it back. Transfer "there" makes it impossible to change the license terms for Habr under Art. 1235. Transfer back does not give the right to change the license again under the same clause 7 of article 1235.
We conclude.
What does Habr do? He publishes and wants to publish a work without restrictions, the danger of a ban or other changes in the distribution of the work.
The author wishes to have the same thing, since the remuneration for the work is not enough to be fully satisfied with the sale of all rights, and the resource does not have such a goal. Only the uniqueness of the content is required, which means the non-publication of the work earlier.
Therefore, a completely correct way for Habr to defend himself is to get a license for a long time, and then be sure that the rights will be transferred to another person. Then all rights under the license are preserved, and neither the previous owner nor the new one can cancel it. Even if after this right again the new owner will be transferred back or anywhere.
So we have a contract scheme:
1) the work is created;
2) every time a signature is put under an unlimited license for reproduction and distribution (then you don’t need to invent an “author’s order”) by sending the form using the “Consent” button;
3) temporarily, for 5 seconds. rights are transferred (to reproduce and distribute) to the intermediary or the same Habra with the condition of return, otherwise they are not valid;
4) Habr returns the rights back (it can prohibit something for the same 5 seconds, because the temporary transfer of rights);
5) a contract is deemed to exist if all clauses are fulfilled.
So, we get a license, unapproved by anyone, unlimited in time and without any extra rights. The owner remains the author. The owner has all rights. The rights of the owner and the licensee do not conflict (distribution is not a mutually exclusive operation).
... Probably, such a scheme, nevertheless, will not work, because it is not directly recorded depriving the new rightholder of the possibility to change the contract of the former, having made a ban. But somehow I don’t believe in anything else - if there is a separation of rights, if permissive exclusive rights can be transferred and at the same time nothing can be done with prohibitive exclusive rights? Is it not possible to write in the contract: this license cannot be subject to prohibitions on the part of any copyright holder of this work - and ensure the viability of the license without any tricks? I did not find any analogs, as well as direct articles of the laws. In the end, I would like to say more about something else.
Professionals are not those who know by heart the CC, competently write contracts or can write the correct code with closed eyes. Professionals are those who understand the general idea of ​​the problem and do not create problems for the customer by replacing the solution with a pseudo-solution that breaks the delicate matter of social relations a little side by side, but already outside their sphere of responsibility. Make an excellent contract, but leave the trampled nature around you - and you are no longer a professional, but a vandal and a predator destroying the ecosystem.
References:
*) habrahabr.ru/blogs/announcements/116652 - Spring update, part 2 "Authors' Encouragement Program"
*) habrahabr.ru/ppa/offer - Public offer to conclude an Author's Order contract
*) habrahabr.ru/blogs/copyright/117662 - Authors Encouragement Program - “pitfalls”, which are better known in advance
*) habrahabr.ru/blogs/copyright/117713 - Authors Encouragement Program - why the agreement was made like this
A couple of days passed after the author’s long-awaited answer from the “Authors’ Incentive Program ”( PPA ) document, explaining the wondering questions of many readers who did not stop from the first day of publication .
In addition to minor flaws that are easy to fix in the process, there was also a major controversy: the author's work is distributed under the license CC-BY 3.0, but all rights and, therefore, the ability to revoke the license is transferred to Habra.
')
In terms of compensation, it is easy to calculate (many have already done so) that the amount of compensation is several times less than the threshold for which it is worth selling your work, but the purity of the scheme is of interest. In practice, intellectual labor is sold for an average salary or higher. But on Habré we do not have such a scheme initially. The authors expect to publish their works in other places without restrictions and enjoy all rights.
In fact, if Habr keeps the rights, it will be disadvantageous to change the license, because then he will lose confidence and with him the sources of the articles. But the authors who have lost the right to publish, theoretically, can suffer.
Therefore, readers and potential authors perceived with mistrust a contract that was turned upside down, in which the author loses rights and obtains a license under which he can use the work in the hope that the license will not be canceled. It is obvious that the rights of the authors are seriously violated, in connection with which it was called the “Program of the Punishment of Authors” ( PNA ).
But - strangely enough, the author of the document continues to consider relations built in a similar way to be normal, explaining that "only in this way are the interests of the party protected as much as possible," emphasizing that there are no other ways within the legal space of the Russian Federation.
Let's try to figure out the question and find your answer.
Where is the dog buried?
The essence, as it turns out, is that the legislation does not have a simple scheme for the possibility of the simultaneous distribution of a work by two persons without the possibility of its prohibitive arbitrary exclusive rights. There are exclusive rights, several types, but there is no voluntary deprivation of the right to ban or change the method of licensing.
What is an exclusive right?
Civil Code. Article 1229 . Exclusive right.The key word is to prohibit. The holder of the exclusive right may at any time prohibit the use. (However, there is an exception (if not to say “contradiction”. With licensing (Art. 1235. Licensing agreement.))
...
The right holder may, at its discretion, authorize or prohibit other persons to use the result of intellectual activity ...
As far as can be judged by the experience of contracts between people and organizations, the following rules should be followed in contracts: no need to build structures that do not reflect the essence of the relationship. All the tricks - from the evil one. And this is exactly how the partner’s proposals will be perceived by others: if the partner “muddies the water” in obvious things - therefore, it’s unclean, it means that it should be perceived with caution.
It is likely that the law firm and contractor that made the contract has very honest and respectable relations with the direct customer - the Habr administration. She did not want to spoil the reputation of the customer, but, on the contrary, she tried with all her might to make an excellent and (almost) unprecedented contract of remuneration for publications on a network resource. Undoubtedly, all technical aspects are well developed. In the article “The Author's Encouragement Program - why the agreement was made that way”, the seneschal author described many of the features and justifications for them: 1000 rubles of a “gift”, which in difficult cases acts as an advance on the next unpaid article, proper separation of tax payment duties, the need to submit copies . We all want it to work. After all, the more effective the work of the authors, the more interesting and useful it will be to read Habr.
But there is a moment casting a shadow on the purity of intentions that many readers immediately saw almost immediately after publication.
Is it possible in a different way?
The drafter of the document put the administration of Habr in an unpleasant position, causing puzzled questions about both errors and conscious distortions of the essence of Habr's relations with the authors. Even deniskin was forced to make excuses to readers that they wanted to put into practice a good idea without backward black thoughts, but received the distrust of users because of the author’s and the publisher’s upside-down relationship. And the excuse was that lawyers insisted that the PPA Treaty should be just that and not different.
Now let's see whether it is possible to make the contract differently and so that Habr is no less legally protected in the publication of works written for him.
Relations are governed by art. 35 of the Law "On Copyright and Related Rights". www.businesspatent.ru/article/article.19.7.html and the Civil Code of the Russian Federation in terms of protection and transfer of copyright.
Copyright Act. Article 31 Terms of copyrightSo, we have the possibility of a partial transfer of rights. (we recall that the author of the PPA document said: “ If such an author does not give exclusive rights to such content completely, it’s impossible to exclude the possibility of such claims within our legal field. ”, but it already turns out that the harmless right to modify cannot be transferred - and nothing will change). At the same time, a complete transfer of rights is no different from a partial one in terms of legal force (readers can independently check other points of the law and examples of practice).
...
4. The rights transferred under the author's agreement may be transferred in full or in part to other persons only if this is expressly provided for by the agreement.
There is a curious point:
5. The subject of the copyright agreement may not be the right to use works that the author may create in the future.It follows from it that the contract can work only for the created works. For example, each time the author must confirm the transfer of rights in the form of publication. If this is not the case, any contract created in advance may be challenged. PPA is a contract created in advance, before the creation of works, therefore it can only declare the form of transfer of rights, and the transfer itself - to occur after the creation of the work.
The possibility of transfer in the future referred to in paragraph 1 of Article 1234 of the Civil Code of the Russian Federation (“transfers or undertakes to transfer the exclusive right belonging to it”), as well as the “Copyright Law, Article 33, the author’s contract of order” contradicts this copyright clause, therefore possibility is controversial and cannot be considered reliable. But the main focus was on ensuring reliability. Moreover, Article 33 talks about the transfer of the work, and not the rights to the work. There is also “the Civil Code of the Russian Federation, art. 1288, the contract of author's order”, which provides for the transfer of rights in the future. The only problem is that Habr DOES NOT ORDER articles, but only determines the subject matter and controls the content. Probably, this problem explains the “far-fetched” position in the PPA:
"2.1. The user undertakes, for remuneration on the instructions of the Customer, to perform work on the creation ... ”, which does not clarify the essence of the contract.There are a number of pitfalls that directly follow from the Law and which are not mentioned in the PPA.
Now let's see which partial transfer of rights is practiced in the Russian Federation.
www.prpc.ru/booklet2/02.shtml
The author’s property rights include the right to reproduce (copy) a work, which is divided into a number of separate powers: the rights to reproduce, distribute, publicly perform, translate, remake, etc.
...
Property rights are those that provide income to its creator. They under the contract can be transferred: for a certain period; for the entire term of copyright protection; for a fee or free of charge; on an exceptional or non-exclusive basis. If the rights are transferred on an exclusive basis, then this means that only the person to whom the rights to reproduce and distribute the work are transferred can use them.
And yet (importantly) we see a loophole in which it is possible to reach a state when the license to use cannot be changed by anyone. We look at
Civil Code. Article 1235 . License agreement
7. The transfer of the exclusive right to the result of intellectual activity or to the means of individualization to a new rightholder does not constitute a basis for amending or terminating the license agreement concluded by the previous rightholder.
It means that it is enough to transfer to someone exclusive rights (for distribution and publication) temporarily (as described in the quotation above), with the obligation to transfer it back. Transfer "there" makes it impossible to change the license terms for Habr under Art. 1235. Transfer back does not give the right to change the license again under the same clause 7 of article 1235.
We conclude.
What is needed?
What does Habr do? He publishes and wants to publish a work without restrictions, the danger of a ban or other changes in the distribution of the work.
The author wishes to have the same thing, since the remuneration for the work is not enough to be fully satisfied with the sale of all rights, and the resource does not have such a goal. Only the uniqueness of the content is required, which means the non-publication of the work earlier.
Therefore, a completely correct way for Habr to defend himself is to get a license for a long time, and then be sure that the rights will be transferred to another person. Then all rights under the license are preserved, and neither the previous owner nor the new one can cancel it. Even if after this right again the new owner will be transferred back or anywhere.
So we have a contract scheme:
1) the work is created;
2) every time a signature is put under an unlimited license for reproduction and distribution (then you don’t need to invent an “author’s order”) by sending the form using the “Consent” button;
3) temporarily, for 5 seconds. rights are transferred (to reproduce and distribute) to the intermediary or the same Habra with the condition of return, otherwise they are not valid;
4) Habr returns the rights back (it can prohibit something for the same 5 seconds, because the temporary transfer of rights);
5) a contract is deemed to exist if all clauses are fulfilled.
So, we get a license, unapproved by anyone, unlimited in time and without any extra rights. The owner remains the author. The owner has all rights. The rights of the owner and the licensee do not conflict (distribution is not a mutually exclusive operation).
... Probably, such a scheme, nevertheless, will not work, because it is not directly recorded depriving the new rightholder of the possibility to change the contract of the former, having made a ban. But somehow I don’t believe in anything else - if there is a separation of rights, if permissive exclusive rights can be transferred and at the same time nothing can be done with prohibitive exclusive rights? Is it not possible to write in the contract: this license cannot be subject to prohibitions on the part of any copyright holder of this work - and ensure the viability of the license without any tricks? I did not find any analogs, as well as direct articles of the laws. In the end, I would like to say more about something else.
Professionals are not those who know by heart the CC, competently write contracts or can write the correct code with closed eyes. Professionals are those who understand the general idea of ​​the problem and do not create problems for the customer by replacing the solution with a pseudo-solution that breaks the delicate matter of social relations a little side by side, but already outside their sphere of responsibility. Make an excellent contract, but leave the trampled nature around you - and you are no longer a professional, but a vandal and a predator destroying the ecosystem.
References:
*) habrahabr.ru/blogs/announcements/116652 - Spring update, part 2 "Authors' Encouragement Program"
*) habrahabr.ru/ppa/offer - Public offer to conclude an Author's Order contract
*) habrahabr.ru/blogs/copyright/117662 - Authors Encouragement Program - “pitfalls”, which are better known in advance
*) habrahabr.ru/blogs/copyright/117713 - Authors Encouragement Program - why the agreement was made like this
Source: https://habr.com/ru/post/117804/
All Articles