“Self-limiting Rights”: sovereign free versus ordinary licenses. Educational program on the "problems" of licenses

Mr. Kalyatin , already known to us , who either does not understand what he is doing, or understands, but does it on purpose, will not calm down in any way. May 19, 2011 in the building of the Chamber of Commerce and Industry of the Russian Federation at ul. Ilyinka, 6 was a scientific round table "Free licenses" or self-restriction of the right? " . For three hours, the proposed amendments to the Civil Code were discussed, namely the introduction of free licenses in Russian - the sovereign “self-limitation of law” (the same story with the state registration of Linux on the Rospatent website - the entire free software community and free culture, though now site of the Ministry of Culture ). Mr. Kalyatin delivered a report in which he continued to assert that in order for licenses, like Creative Commons licenses , to become active in Russia, consensus in the expert community is not enough. "This model requires a long and complex localization." Such a process may take several years, and the proposed alternative mechanism of “self-limitation of law” can be a good compromise solution in the conditions as long as the applicability of free licenses in the Russian legislation remains controversial.

For news followers, nothing new, but one thing this round table was different. Finally, specific “problems” of licenses were identified according to those who believe that they are illegal. We will dwell on them in more detail.

So, the "problems":

1. the difficulty of determining the parties to the contract (how to determine who is the right holder and who is the user)
2. doubts regarding compliance with the legal requirements on the form of a contract (does the download of a program from the Internet and the beginning of its use meet the requirements for writing the contract)
3. the gratuitous nature of free licenses (gift agreements between legal entities are prohibited)
4. the impossibility of restricting the author’s moral rights (the author cannot waive the right to the integrity of the work and the right to name)

Thank God there was another lawyer who “answered the charges.” Alexander Saveliev, IBM's legal adviser, does not agree that free licenses are not applicable in the Russian context. In his opinion, all these problems are amenable to solution within the framework of existing legislation. So, for example, the uncertainty of the parties to the contract is found in other types of civil law transactions (for example, selling goods using automatic machines), which does not prevent them from being recognized as valid, the legal requirements for writing a contract when using free programs are respected in principle, and the grounds There are no free licenses for qualifying free licenses, especially those that imply certain obligations on the user’s side.
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In order again with the addition of gag from me.

1. Products are sold using automats. Who was in front of the machine - and the buyer. Who is listed as the author of the work is the right holder (well, in most cases and of course, except for plagiarism, but this is not a problem of licenses). Who uses the work, and the user.

2. About the form of the contract have already said a million times - everything is consistent with the law . Now gag. In addition, there is such a concept as the custom of business turnover . On the Internet, historically, search engines have the full right to gain access to works (texts) on websites, process them and make copies of them without permission. We all remember that under copyright laws, without the permission of the author, no copies can be made. But here comes the Internet and the fact of placing on the Internet site means that the author agrees with the indexing. That is, not only what is allowed is indexed, but what is not explicitly prohibited. If the author wants to disable indexing, then please in robots.txt, but by default on the Internet, indexing is allowed, whatever the laws say. Here's an example of where the Internet overtook laws and it seems that there were court decisions confirming this (UPD: I found " Using caching, according to the judge, is generally accepted in the online search sector "). It seems to me that if questions still arise in the situation with licenses, then you just have to agree that “concluding an agreement via the Internet” is generally accepted and one cannot get away from this custom of business turnover, because everyone is doing it.

3. In fact, the prohibition of contracts of donation between legal entities does not affect the license. I asked a lawyer and habraiser noirart "How do you think does article 575 of the Civil Code prohibit gratuitous licensing agreements between commercial organizations?". He replied:

References to the fact that, they say, a gratuitous license agreement between commercial organizations on the basis of article 575 of the Civil Code has been banned. Somehow, even a client dragged such a conclusion from some law firm.

Clause 1 of Article 572 of the Civil Code establishes that under a donation agreement one party (donor) donates or undertakes to transfer to another party (grantor) a property or property right (claim) to itself or to a third party, or exempts or undertakes to release it from property obligation in front of you or in front of a third party. And then the comrades conclude that, they say, as long as the exclusive right is a property right by virtue of 1226 GK, then the rules of 575 GK apply to gratuitous transactions with the results of intellectual activity.

In short, I think this is a fabulous nonsense and I consider it necessary to beat it on the forehead with a ruler.

Personally, I hold the following position:

1. yes, the exclusive right is a property right by the Civil Code;

2. at present, the Civil Code for transactions with the results of intellectual activity uses a system of license agreements (and an agreement on the alienation of exclusive rights);

3. Clause 1 of Article 1235 of the Civil Code establishes that under a license agreement one party - the holder of an exclusive right to the result of intellectual activity or to the means of individualization (licensor) grants or undertakes to give the other party (licensee) the right to use such result or such means within the limits provided by the contract ;

4. at the same time, on the basis of the meaning of the contract, donation is not supposed to be presented in the form of reciprocal obligations (be it: the transfer of things, money, the implementation of an action, etc.). If the contract of donation contains similar provisions, then proceeding from paragraph 2 of clause 1 of article 572 of the Civil Code, as well as clause 2 of article 172 of the Civil Code, such a contract is void, since it is a sham transaction;

5. Clause 5 of Article 1235 of the Civil Code stipulates that under a license agreement the licensee undertakes to pay the licensee the remuneration stipulated by the agreement, unless otherwise provided by the agreement. In other words, directly indicates the possibility of concluding a grant agreement.

6. A licensing agreement is a bilateral agreement. In a bilateral agreement, each of the parties has rights to obligations to each other and, despite the possible free license agreement (clause 5 of Article 1235 of the Civil Code), this does not detract from the fact that the licensor is obliged to comply with the restrictions established by the license agreement. For example, the territory of use, the order of use, etc.

Thus, in my opinion, it is far from an ambiguous conclusion that a gratuitous license agreement establishing the obligations of each of the parties cannot, by virtue of paragraph 2 of clause 1 of article 572 of the Civil Code, be a gift agreement, therefore, the provisions of article 575 GK, as they relate only to the design of the contract of donation.

4. The last even more enchanting nonsense. First of all, how can this author not relinquish the right to the integrity of a work? And how then are the books translated into another language? After all, this is the creation of a derivative work, with which the author agrees. The same thing happens with our licenses. Secondly, no one requires, when using licenses, to waive the right to a name. Moreover, the Creative Commons licenses explicitly state that these licenses in no way affect personal non-property rights.

I think that I and those whom I quoted have dispelled the next misconceptions regarding licenses. If you have any questions, then you can find the answer by the links from here or from here .

Lord Richard, forgive Kalatin, he does not know what he is doing.

A source:

www.cnews.ru/news/top/index.shtml?2011/05/20/440919

See also (highly recommended reading):

www.cnews.ru/news/top/index.shtml?2011/05/20/440919
live.cnews.ru/forum/index.php?showtopic=71277
serge-sereda.livejournal.com/6609.html
www.lawfirm.ru/forum/viewtopic.php?f=7&t=589463#p5513880

UPD:

The site privlaw.ru posted detailed comments of lawyers:

1) On draft laws introducing “free licenses”
2) Comments on the proposed in the draft amendments to Part 4 of the Civil Code of the Russian Federation the concept of regulating relations arising in connection with the free use and distribution of objects of copyright