On the dangers of copyright and the benefits of licensed programs
In this article we will talk about the main legal aspects of information security. In other words, it’s about not breaking the law, not losing business and not going to prison.
The test for ingenuity. Is the recording of this picture valid in the memory of your computer? Who recorded it there? Is it a work of art? Is it the result of intellectual activity? Who is its copyright holder? How can you figure this all out for sure? How do you characterize the one who invented all this?
The legislation of the Russian Federation in the field of intellectual rights has caused us complex feelings ... Its basis is the Civil Code in the 2008 edition. Unfortunately, not all the leaders of Russian organizations read it carefully. And of those who read, not everyone believed their eyes. In the course of our study, we found a low level of legal literacy in the IT field: people often do not know how to act in order not to be guilty. However, the situation around copyright in our European Union is not the best :(
')
To survive, you need to know the law well. It really helps against you know who. We will give a rigorous legal analysis of the problem in relation to the activities of organizations that are residents of the Russian Federation.
First of all, there are no “licensed” and “unlicensed” programs from a legal point of view. Remember the term used in the legislation of the Russian Federation - "the result of intellectual activity" (RID). Examples RID - computer program (.js), music (.mp3), video (.flv), picture (.jpg), literary text (.htm). There are other types of Reed - from the brand to the design of the chair. Each RID itself cannot be “licensed” or “unlicensed.” But you can either use it or you cannot. This depends, in particular, on whether you have a document authorizing the use of this REED. An example of use is that you write the RID to the computer's memory. To use multiple REEDs, you need written permission for each of them. Without the explicit permission of the copyright holder, the Civil Code of the Russian Federation prohibits you from using any RID in any way.
There are rare exceptions. For example, you have the right to play some sad music at a funeral without permission. But this is poor consolation. Such exceptions do not change the essence of the matter.
Why do you think a law was passed prohibiting the use of any RIDs in the form of copying them into a computer’s memory from January 1, 2008 without the written permission of the copyright holder? We do not know. What impact has this had on the economy and the standard of living? Questions of this kind are beyond the scope of the article. We only note that the norms of the Civil Code of the Russian Federation are a pronounced example of a copyright, which vividly illustrates its strange essence - the illegality of copying an IED without permission. Similar laws are being adopted in recent years all over the Earth.
In connection with such unanimity of the inhabitants of the Earth regarding copyright, it is difficult to believe that these laws are passed secretly and illegitimate. Otherwise, one would have to admit that someone else began to deceive the population of the entire planet, rigging elections in almost all countries on all continents. But who could it be? :) I do not want to think that the story told by us in the first issue of the blog may turn out to be not a fiction, but a terrible truth. However, what the hell is not joking? ..
In any case, in that issue we tried, partially in allegorical form, to explain the reasons for the deplorable state of affairs in many areas of human activity.
So, if the use of REED is not explicitly allowed, then it is prohibited. It is believed that each RID has a copyright holder. Only he can grant you the right to use his RIA - within certain limits established by the agreement (such an agreement is called licensing). The contract must be in writing. Failure to comply with the written form entails the invalidity of the contract. Oral form in the Russian Federation is allowed only for granting rights to use RID to periodicals - there are no other exceptions. In other cases, the right holder does not have the right to provide you verbally with the right to use his RIA - even if he himself wants it. The fact is that the norms of law are prior to civil contracts. Written form is required. The absence of a ban is not considered permission.
Strangely enough, the same law allows the right holder to publish its RID in a publicly accessible place - for example, on the Internet. How is this consistent with the mandatory written form of the contract? Very simple: read the CC. It does not provide for granting you the right to use the RID on the basis of the fact of the publication of the RID on the Internet or other publicly accessible place. Let the copyright holder publish his RID and really wants you to use it at your discretion. But the desire of the right holder is not enough: you still do not have the right to do so. Need a written contract. Your lack of the right to use the RID does not violate the right of the right holder to this RID to publish as much as you like - isn't it logical? :)
Imagine yourself in the copyright holder. You have written a computer program, a wise saying or a whole book and you want to distribute or sell your REED in a public place - in a store, on the street, etc. In the form of a sheet of paper, CD or brochure. In order to give others the right to freely use your REED (that is, the information part of your work, and not its material carrier), you will have to enter into written agreements. Granting the right to use IPW orally is illegal. The rightholder can use the REED belonging to him not in any way, but “in any way not contrary to the law”. And the law requires a written form of the contract. Its text must be compiled in accordance with the requirements of the law and contain clear for both parties and strictly defined conditions for granting the right to use IEDs. Grant the right to use the RID without complying with these requirements or orally the right holder does not have the right. If the contract was verbal or it was not there at all, then the event of granting the right did not happen. In the case of a program or book written by you, all the persons who have received the media from you with the RID without a license agreement have, at best, the right to use the media. For example, they can legally use a CD as a stand for a cup of coffee. Any other media, respectively.
Some people, most likely, will take your REED from you without a contract and will start using it, having decided that they have the right to do so. From the point of view of common sense - it is logical. But, unfortunately, they will not have any document confirming this right.
If you find in your office that someone else’s REED has been loaded into the computer’s memory as a result of your actions, and you cannot provide documentary evidence of its use, you will be in trouble.
But to conclude a contract with the copyright holder is not always easy and not always possible. First, try to find him among several billion people. Secondly, try before signing a contract to obtain evidence from him that he is the copyright holder. Did you know that by law you can get the status of the copyright holder without any documents? Yes, yes it is. Given this circumstance, it will be difficult for you to make sure that it is the right holder of the particular REED in question.
A simple example. Do you know who is the copyright holder of a certain file “medvedev.jpeg”, which is a portrait of the head of state? Not? We also do not know. If LLC “NNN” offers you to conclude an agreement giving you the right to write to the memory of your computer of this RID, will you agree? Not? Is logical. And which legal entity owns the rights to the sequence of bytes "53, 4F, 4E, 59"? Do not know? And this, by the way, is a very important sequence. Do you have the right to write this sequence in the computer's memory? Try to answer this question on the basis of the Civil Code.
Notice that the internet is big. The rights to use a significant part of the RIA contained in it are regulated by civil contracts in foreign languages. Such contracts are void in the Russian Federation. Have you ever concluded a licensing agreement in English without its Russian equivalent? What do you think, to what extent are your rights in the RF protected by such an agreement?
Now - the most interesting. Writing someone else's REED in memory is not always considered its use. According to Russian law, the same action you do - writing the IED to computer memory - can be considered using IED, but it can not be considered. And it does not depend on you. And it does not depend on the content of the RID. And it does not depend on the computer. It depends, first of all, on the text of documents compiled by other people and, as a rule, unknown to you. It may also depend on the internal desire of the copyright holder, not expressed in any documents. By the way, in many cases, the law leaves the right holder the right to change their desire retroactively.
So, if the right holder has entered into a licensing agreement with someone, in which he granted the right to publicize his RIA, then you, as mentioned above, have no right to use this RID. But you have the right to write it into computer memory! This is not considered use. You do not have permission to use Reed, but it is not required: you do not violate the law because you do not make use of the event. But if in the contract between third parties nothing like this is said, then you have no right to write this REED into computer memory! This is considered use.
We repeat that we do not know why all this is invented :)
As a rule, you do not have the opportunity to find out what is the content of the contract between third parties. Thus, the legality or illegality of your action depends entirely on the legality of the actions of others.
By the way, if the court recognizes the illegitimacy of actions of third parties committed by them in the past, then you will retroactively recognize your actions as illegal.
We emphasize that there can be no agreement at all if the RID was published directly by its right holder. In this case, is it legitimate to record you in the memory of this REED? Formally, yes. But how do you know about it and, most importantly, what will be your evidence of the validity of your actions? And how do you know that the copyright holder has changed his mind if this happens?
The law does not give the right to individuals or legal entities to make decisions about the legality or illegitimacy of using any foreign RID. Arguments like “I thought it was legitimate”, “if there is no document on illegality, then you can use it” and “everybody does that” will not help. The legality of the use of RIA must be documented and written.
Please note that at the time of the copying operation from the Internet of an arbitrary file (for example, this surrealistic work ) into the memory of your computer, you by definition do not have information about the content of this file, its copyright holder and the texts of agreements of this copyright holder with third parties. And after you have recorded in memory, the action is considered perfect. But even then - do you have the opportunity to find out if it was rightly done by you? Do you have the opportunity to find out who is the copyright holder of this REED? If not, how can you comply with the law?
By the way, this exception, when writing to memory is not considered to be used by REED, is valid only if this REED is a product. Terms such as “works of literature, science and art”, “phonograms”, “brand names” or “trademarks” are legally different. If some cases of writing to the works are not considered to be used, this does not mean that the same applies, for example, to brand names. Try to reread the Civil Code again and clearly answer the question: do you have the right to write the “53, 4F, 4E, 59” byte sequence into the memory of your or someone else's computer? Is this sequence a product?
So that the recording by you into the computer memory of someone else's REED is not considered to be its use, the law requires that one more condition be fulfilled. The record must be “temporary” and “constitute an integral and essential part of the technological process, which has the sole purpose of lawful use of the record or lawful communication of the work to the public”. Under the product refers to the corresponding REED. Here begins a legal nightmare.
Firstly, this wording does not explain how “having a goal” can not be a subject of law, but a “technological process”. Is the goal of the printing process itself a legitimate goal? Does the technological process of writing bytes to the computer memory have a legitimate aim? Is the technological process of transmitting packets using the IP protocol right?
The legitimacy of use in any case is determined not by the "technological process", but by the right holder. The use of RID is legitimate if and only if the right holder has granted another person this right in the form prescribed by law and specifying the conditions of use. There is no "technological process" that replaces the license agreement with the copyright holder, according to the law does not exist.
Secondly, it is not clear what “legitimate use of the record” is (not the RIA, but the record): this notion of the Civil Code does not clarify. A record is valid if it enters a process whose goal is to use it legitimately? This is quite strange.
Thirdly, you usually do not have the opportunity to find out whether the named “goal of the process” of third parties is the only or not the only one. Note that the majority of “technological processes”, along with the goal of “communicating”, has at least one more legally significant goal: making a profit.
And finally, the wording “temporary record” is legally incorrect. It can be interpreted as you like. Mean year? Day? Minute? Decade? Can you imagine a temporary public notice ?? :) How can one cancel out the recording in memory after a certain time directively ?? As far as we know, the information brought to the public was subsequently legally destroyed only in the novel “1984”. If you know other literary examples, please let us know.
Let us explain some other important details of Russian legislation.
The license agreement for granting the right to use RID is also RID. CC does not include it in an exhaustive list of objects not protected by copyright. To use a license agreement (giving the right, for example, to use a text editor), you also need permission from its copyright holder. In order not to create an infinite sequence of mutually permissive contracts, the license contract, apparently, should contain an indication of the right to use itself :)
Prohibiting the recording of RIDs in the computer’s memory without prior permission is a ban relating to you and your action, and not to the ownership of this computer. The operation of copying RIDs into computer memory without the permission of the copyright holder is considered illegal, no matter how you perform it - from your computer to someone else, from someone else to yours, from yours to yours, from someone else's to someone else's; via the Internet or otherwise. Physical memory type (RAM, HDD, flash, etc.) is also irrelevant. But, we recall, the same operation is considered legal if it is not considered the use of REED :)
GK does not provide for the possibility of "advance" copy to memory or other use of REED. If at the time of the action with the RID, which means use, you do not have permission, it means that your action is illegal, even if you expect to get permission sometime later. First - permission, then - use.
Having concluded the contract, you further have the right to use the RID only in the ways established by the contract. For example, the copyright holder may allow you to perform a single copying operation of a specific REED (copyright holder) from your computer’s memory to your computer’s memory via the global network on January 1, 2012 from 4:00 to 5:00 pm But only if your computer is green. By the way, unless otherwise specified in the contract, you will be required to provide the right holder with a report on the implementation of this operation. If the contract does not directly exempt you from the obligation to provide reports on the use of IEDs, you must do so in all cases - this is written in the Civil Code. How detailed the reports should be and whether their oral form is allowed is not specified.
Unlike images, books, films and some other types of REEDs, a computer program is a special type of REEDs, for which the conclusion of a written contract is not required by law. Instead, the right holder may unilaterally state the terms of the contract “on a copy of the program being acquired” or on its packaging. The beginning of your use of such a program is interpreted by the law as the conclusion of this contract by you and your obligation to fulfill it. At the same time, the electronic form of the text “on a copy of the program” is not excluded. Note that in this case, theoretically, there may be discrepancies between the text that you have and the text that in the event of a conflict the right holder submits to the court: the electronic text “on a copy of the program” is easy to change. In this case, the court is likely to decide in favor of the copyright holder, considering that you have forged the contract. The fact is that the law does not provide for any other evidence of the legality of your use of the RIA, except for the express permission of the copyright holder. This means that it de facto remains a priority in solving controversial issues.
In addition to granting you individual rights limited by a license agreement, the right holder may assign you and all of his rights to the RID. Unlike a license agreement, this is called a contract for the alienation of exclusive rights. Of course, in this case the written form of the contract is also required, and the oral form entails its invalidity. But if everything is done according to the law, you become a copyright holder and get the right to file other lawsuits in cases of unlawful use of your RIA - demanding compensation for violation of your rights, of course. To facilitate the detection of such cases, you can embed appropriate algorithms in the REED. You become a member of the "copyright economy".
Agreements on the transfer of intellectual property rights can be either paid or free of charge. Legislation requires their written opinion, but leaves to the parties any material issues. For example, you can write a book, a painting or a computer program called “Dark Square” and, as the copyright holder, enter into a licensing agreement to use it for a million arbitrary units per month - this does not have to be money. But if you specify the money in the contract, the corresponding payments for the right to use the IED will turn out to be completely legal. For any amount. And this will not prevent you from giving the same RID (or its “abbreviated version”) to another person free of charge, specifying the corresponding condition in the contract. In other words, the Civil Code does not establish a connection between intellectual rights and any material values ​​and objects. The thing is in itself, the RID is in itself. The material value of the RID is determined only by the copyright holder.
Do you already understand the essence and meaning of copyright? :)
For individuals, the law gives some allowances that allow the use of many types of RID content (music, texts, pictures, videos, etc.) without the permission of the copyright holder - but only for personal purposes and with payment of remuneration to the copyright holder. However, it is better not to do it without need: since 2010 it is prohibited. And most importantly, no indulgences relate to computer programs: in this area, the law establishes general rules for both individuals and organizations. In addition, the Civil Code does not specify the amount of remuneration. It remains unclear how the statutory remuneration condition relates to the norm of the same law on the non-obligatory granting of rights to the IPA and the uncertainty of monetary amounts.
From the point of view of the Civil Code of the Russian Federation, the right to use RIA refers to the so-called intellectual property rights. They do not depend on the ownership rights to the material carrier (thing), in which the RID is expressed. By purchasing a thing, you do not thereby acquire the intellectual rights to the IED expressed in this thing, as it was before. The transfer of ownership of a thing does not entail the transfer or the granting of intellectual rights to the intellectual property expressed in this thing. Therefore, the argument that your thing belongs to you will not be considered in court as an argument in favor of your right to use the IED expressed in this thing. Repeat: the only document proving your right to use someone else's IP is a license agreement between you and the copyright holder. The assumption that the right holder “does not object” to your use of the RID will not help, even if he really does not object: the Civil Code of the Russian Federation explicitly says that the absence of a ban by the right holder is not a permission.
The rule of law that the transfer of ownership of a thing does not entail the granting of intellectual rights to the corresponding REED is of particular importance for the IT sphere. With reference to a computer device, this provision means that the transfer of ownership of such a device to you does not entail the granting of intellectual rights to the software expressed in this device to you. In other words, buying a computer does not mean giving you the right to use any programs that are in it. Without the permission of the copyright holders their use is prohibited. This applies to all computer programs without exception. The CC does not make exceptions neither for the BIOS of the motherboard, nor for the firmware of the mobile device, nor for the script in the browser. Your assumption that the programs hit the computer correctly, does not give you the right to use them. If people had the right to use information only on the basis of their assumptions, as it was in the good old days, there would be no trace of copyright. But the fact of the matter is that the law does not give anyone such a right.
It is never too late to remember forgotten methods of counting with a pen and paper. It is safe and secure.
From a legal point of view, a computer program is “a collection of data and commands intended for the functioning of a computer and other computer devices in order to obtain a certain result”. Such a broad formulation includes almost any software of any computer devices - motherboards, calculators, industrial CNC machines, music synthesizers, video cameras, cameras, medical devices, smartphones, tablets, laptops, phones, video monitors, watches, timers, embedded computers vehicles and household appliances, industrial PLCs, traffic lights, distributed server systems, etc. Computer devices, for example, are standard keyboard and mouse - and at the same time, this definition includes the entire computer system in which they can be included. A computer device is considered to be an air traffic control panel as a whole, as well as each of its individual boards. In other words, the law does not stipulate the sphere of application of computer devices, their appearance, purpose, size, or the format of a “certain result” - the same rules of the right to use REED apply to all types of computer devices.
By the way, the “other computer devices” specified in the law do not have to be electronic. The rule of law applies to mechanical, optical and any other architectures to the same extent.
But analog electronic devices under the law in this case do not fall. The fact is that they cannot run the program. Such devices include, for example, an audio amplifier and an analog tape recorder. But digital audio equipment is already a computer device, because it executes or can execute "a set of data and commands intended for operation in order to obtain a certain result."
Separately, we consider the validity of the storage of the RID. Is storage considered use? Suppose you have a carrier or computer device that contains a program in your office. Suppose the carrier or device is your property, but you do not have a license agreement that allows you to use this program. Could a simple storage of such a carrier or device in your office be considered illegal? Yes maybe. The fact is that in the legislation of the Russian Federation there is no exhaustive definition of the term “use of REED”. In the Civil Code, only some specific examples of the use of REEDs (in particular, the recording of REEDs in the computer's memory) are given.From a legal point of view, this means the validity of a broad interpretation of the term. Nothing prevents the court or the right holder from using the IDA to name its storage in any thing belonging to you that performs the function of a material carrier. In this regard, it is risky to use a carrier or device without a license, even as a stand for coffee.
Attention! «» . . . . — . — . — . , , , - -?
The wording of the Civil Code "using the work ... is considered, in particular: ..." leaves great opportunities for making decisions about what else might be the use. By the way, pay attention to the fact that even such incomplete wording applies only to works, and not to all REEDs.
For the sake of completeness, we add that “audio-visual displays generated by a program” are considered to be part of it, i.e. part of the RID author of a computer program. From a legal point of view, this formulation covers not some, but all “generated mappings”. This applies to the program of your camcorder, to a graphic editor, and to a text editor too. This applies to any program.
The future has come.In Russia, it happened on January 1, 2008. In other countries, progress is progressing at about the same pace.
Draw conclusions, ladies and gentlemen.
* * *
To be continued...
The test for ingenuity. Is the recording of this picture valid in the memory of your computer? Who recorded it there? Is it a work of art? Is it the result of intellectual activity? Who is its copyright holder? How can you figure this all out for sure? How do you characterize the one who invented all this?
The legislation of the Russian Federation in the field of intellectual rights has caused us complex feelings ... Its basis is the Civil Code in the 2008 edition. Unfortunately, not all the leaders of Russian organizations read it carefully. And of those who read, not everyone believed their eyes. In the course of our study, we found a low level of legal literacy in the IT field: people often do not know how to act in order not to be guilty. However, the situation around copyright in our European Union is not the best :(
')
To survive, you need to know the law well. It really helps against you know who. We will give a rigorous legal analysis of the problem in relation to the activities of organizations that are residents of the Russian Federation.
First of all, there are no “licensed” and “unlicensed” programs from a legal point of view. Remember the term used in the legislation of the Russian Federation - "the result of intellectual activity" (RID). Examples RID - computer program (.js), music (.mp3), video (.flv), picture (.jpg), literary text (.htm). There are other types of Reed - from the brand to the design of the chair. Each RID itself cannot be “licensed” or “unlicensed.” But you can either use it or you cannot. This depends, in particular, on whether you have a document authorizing the use of this REED. An example of use is that you write the RID to the computer's memory. To use multiple REEDs, you need written permission for each of them. Without the explicit permission of the copyright holder, the Civil Code of the Russian Federation prohibits you from using any RID in any way.
There are rare exceptions. For example, you have the right to play some sad music at a funeral without permission. But this is poor consolation. Such exceptions do not change the essence of the matter.
Who benefits?
Why do you think a law was passed prohibiting the use of any RIDs in the form of copying them into a computer’s memory from January 1, 2008 without the written permission of the copyright holder? We do not know. What impact has this had on the economy and the standard of living? Questions of this kind are beyond the scope of the article. We only note that the norms of the Civil Code of the Russian Federation are a pronounced example of a copyright, which vividly illustrates its strange essence - the illegality of copying an IED without permission. Similar laws are being adopted in recent years all over the Earth.
In connection with such unanimity of the inhabitants of the Earth regarding copyright, it is difficult to believe that these laws are passed secretly and illegitimate. Otherwise, one would have to admit that someone else began to deceive the population of the entire planet, rigging elections in almost all countries on all continents. But who could it be? :) I do not want to think that the story told by us in the first issue of the blog may turn out to be not a fiction, but a terrible truth. However, what the hell is not joking? ..
In any case, in that issue we tried, partially in allegorical form, to explain the reasons for the deplorable state of affairs in many areas of human activity.
Is it possible to agree orally?
So, if the use of REED is not explicitly allowed, then it is prohibited. It is believed that each RID has a copyright holder. Only he can grant you the right to use his RIA - within certain limits established by the agreement (such an agreement is called licensing). The contract must be in writing. Failure to comply with the written form entails the invalidity of the contract. Oral form in the Russian Federation is allowed only for granting rights to use RID to periodicals - there are no other exceptions. In other cases, the right holder does not have the right to provide you verbally with the right to use his RIA - even if he himself wants it. The fact is that the norms of law are prior to civil contracts. Written form is required. The absence of a ban is not considered permission.
Strangely enough, the same law allows the right holder to publish its RID in a publicly accessible place - for example, on the Internet. How is this consistent with the mandatory written form of the contract? Very simple: read the CC. It does not provide for granting you the right to use the RID on the basis of the fact of the publication of the RID on the Internet or other publicly accessible place. Let the copyright holder publish his RID and really wants you to use it at your discretion. But the desire of the right holder is not enough: you still do not have the right to do so. Need a written contract. Your lack of the right to use the RID does not violate the right of the right holder to this RID to publish as much as you like - isn't it logical? :)
Imagine yourself in the copyright holder. You have written a computer program, a wise saying or a whole book and you want to distribute or sell your REED in a public place - in a store, on the street, etc. In the form of a sheet of paper, CD or brochure. In order to give others the right to freely use your REED (that is, the information part of your work, and not its material carrier), you will have to enter into written agreements. Granting the right to use IPW orally is illegal. The rightholder can use the REED belonging to him not in any way, but “in any way not contrary to the law”. And the law requires a written form of the contract. Its text must be compiled in accordance with the requirements of the law and contain clear for both parties and strictly defined conditions for granting the right to use IEDs. Grant the right to use the RID without complying with these requirements or orally the right holder does not have the right. If the contract was verbal or it was not there at all, then the event of granting the right did not happen. In the case of a program or book written by you, all the persons who have received the media from you with the RID without a license agreement have, at best, the right to use the media. For example, they can legally use a CD as a stand for a cup of coffee. Any other media, respectively.
Some people, most likely, will take your REED from you without a contract and will start using it, having decided that they have the right to do so. From the point of view of common sense - it is logical. But, unfortunately, they will not have any document confirming this right.
How to enter into a contract with many unknowns?
If you find in your office that someone else’s REED has been loaded into the computer’s memory as a result of your actions, and you cannot provide documentary evidence of its use, you will be in trouble.
But to conclude a contract with the copyright holder is not always easy and not always possible. First, try to find him among several billion people. Secondly, try before signing a contract to obtain evidence from him that he is the copyright holder. Did you know that by law you can get the status of the copyright holder without any documents? Yes, yes it is. Given this circumstance, it will be difficult for you to make sure that it is the right holder of the particular REED in question.
A simple example. Do you know who is the copyright holder of a certain file “medvedev.jpeg”, which is a portrait of the head of state? Not? We also do not know. If LLC “NNN” offers you to conclude an agreement giving you the right to write to the memory of your computer of this RID, will you agree? Not? Is logical. And which legal entity owns the rights to the sequence of bytes "53, 4F, 4E, 59"? Do not know? And this, by the way, is a very important sequence. Do you have the right to write this sequence in the computer's memory? Try to answer this question on the basis of the Civil Code.
Notice that the internet is big. The rights to use a significant part of the RIA contained in it are regulated by civil contracts in foreign languages. Such contracts are void in the Russian Federation. Have you ever concluded a licensing agreement in English without its Russian equivalent? What do you think, to what extent are your rights in the RF protected by such an agreement?
When is de facto use not de jure use?
Now - the most interesting. Writing someone else's REED in memory is not always considered its use. According to Russian law, the same action you do - writing the IED to computer memory - can be considered using IED, but it can not be considered. And it does not depend on you. And it does not depend on the content of the RID. And it does not depend on the computer. It depends, first of all, on the text of documents compiled by other people and, as a rule, unknown to you. It may also depend on the internal desire of the copyright holder, not expressed in any documents. By the way, in many cases, the law leaves the right holder the right to change their desire retroactively.
So, if the right holder has entered into a licensing agreement with someone, in which he granted the right to publicize his RIA, then you, as mentioned above, have no right to use this RID. But you have the right to write it into computer memory! This is not considered use. You do not have permission to use Reed, but it is not required: you do not violate the law because you do not make use of the event. But if in the contract between third parties nothing like this is said, then you have no right to write this REED into computer memory! This is considered use.
We repeat that we do not know why all this is invented :)
As a rule, you do not have the opportunity to find out what is the content of the contract between third parties. Thus, the legality or illegality of your action depends entirely on the legality of the actions of others.
By the way, if the court recognizes the illegitimacy of actions of third parties committed by them in the past, then you will retroactively recognize your actions as illegal.
We emphasize that there can be no agreement at all if the RID was published directly by its right holder. In this case, is it legitimate to record you in the memory of this REED? Formally, yes. But how do you know about it and, most importantly, what will be your evidence of the validity of your actions? And how do you know that the copyright holder has changed his mind if this happens?
The law does not give the right to individuals or legal entities to make decisions about the legality or illegitimacy of using any foreign RID. Arguments like “I thought it was legitimate”, “if there is no document on illegality, then you can use it” and “everybody does that” will not help. The legality of the use of RIA must be documented and written.
Please note that at the time of the copying operation from the Internet of an arbitrary file (for example, this surrealistic work ) into the memory of your computer, you by definition do not have information about the content of this file, its copyright holder and the texts of agreements of this copyright holder with third parties. And after you have recorded in memory, the action is considered perfect. But even then - do you have the opportunity to find out if it was rightly done by you? Do you have the opportunity to find out who is the copyright holder of this REED? If not, how can you comply with the law?
By the way, this exception, when writing to memory is not considered to be used by REED, is valid only if this REED is a product. Terms such as “works of literature, science and art”, “phonograms”, “brand names” or “trademarks” are legally different. If some cases of writing to the works are not considered to be used, this does not mean that the same applies, for example, to brand names. Try to reread the Civil Code again and clearly answer the question: do you have the right to write the “53, 4F, 4E, 59” byte sequence into the memory of your or someone else's computer? Is this sequence a product?
So that the recording by you into the computer memory of someone else's REED is not considered to be its use, the law requires that one more condition be fulfilled. The record must be “temporary” and “constitute an integral and essential part of the technological process, which has the sole purpose of lawful use of the record or lawful communication of the work to the public”. Under the product refers to the corresponding REED. Here begins a legal nightmare.
Firstly, this wording does not explain how “having a goal” can not be a subject of law, but a “technological process”. Is the goal of the printing process itself a legitimate goal? Does the technological process of writing bytes to the computer memory have a legitimate aim? Is the technological process of transmitting packets using the IP protocol right?
The legitimacy of use in any case is determined not by the "technological process", but by the right holder. The use of RID is legitimate if and only if the right holder has granted another person this right in the form prescribed by law and specifying the conditions of use. There is no "technological process" that replaces the license agreement with the copyright holder, according to the law does not exist.
Secondly, it is not clear what “legitimate use of the record” is (not the RIA, but the record): this notion of the Civil Code does not clarify. A record is valid if it enters a process whose goal is to use it legitimately? This is quite strange.
Thirdly, you usually do not have the opportunity to find out whether the named “goal of the process” of third parties is the only or not the only one. Note that the majority of “technological processes”, along with the goal of “communicating”, has at least one more legally significant goal: making a profit.
And finally, the wording “temporary record” is legally incorrect. It can be interpreted as you like. Mean year? Day? Minute? Decade? Can you imagine a temporary public notice ?? :) How can one cancel out the recording in memory after a certain time directively ?? As far as we know, the information brought to the public was subsequently legally destroyed only in the novel “1984”. If you know other literary examples, please let us know.
Further more
Let us explain some other important details of Russian legislation.
The license agreement for granting the right to use RID is also RID. CC does not include it in an exhaustive list of objects not protected by copyright. To use a license agreement (giving the right, for example, to use a text editor), you also need permission from its copyright holder. In order not to create an infinite sequence of mutually permissive contracts, the license contract, apparently, should contain an indication of the right to use itself :)
Prohibiting the recording of RIDs in the computer’s memory without prior permission is a ban relating to you and your action, and not to the ownership of this computer. The operation of copying RIDs into computer memory without the permission of the copyright holder is considered illegal, no matter how you perform it - from your computer to someone else, from someone else to yours, from yours to yours, from someone else's to someone else's; via the Internet or otherwise. Physical memory type (RAM, HDD, flash, etc.) is also irrelevant. But, we recall, the same operation is considered legal if it is not considered the use of REED :)
GK does not provide for the possibility of "advance" copy to memory or other use of REED. If at the time of the action with the RID, which means use, you do not have permission, it means that your action is illegal, even if you expect to get permission sometime later. First - permission, then - use.
Having concluded the contract, you further have the right to use the RID only in the ways established by the contract. For example, the copyright holder may allow you to perform a single copying operation of a specific REED (copyright holder) from your computer’s memory to your computer’s memory via the global network on January 1, 2012 from 4:00 to 5:00 pm But only if your computer is green. By the way, unless otherwise specified in the contract, you will be required to provide the right holder with a report on the implementation of this operation. If the contract does not directly exempt you from the obligation to provide reports on the use of IEDs, you must do so in all cases - this is written in the Civil Code. How detailed the reports should be and whether their oral form is allowed is not specified.
Unlike images, books, films and some other types of REEDs, a computer program is a special type of REEDs, for which the conclusion of a written contract is not required by law. Instead, the right holder may unilaterally state the terms of the contract “on a copy of the program being acquired” or on its packaging. The beginning of your use of such a program is interpreted by the law as the conclusion of this contract by you and your obligation to fulfill it. At the same time, the electronic form of the text “on a copy of the program” is not excluded. Note that in this case, theoretically, there may be discrepancies between the text that you have and the text that in the event of a conflict the right holder submits to the court: the electronic text “on a copy of the program” is easy to change. In this case, the court is likely to decide in favor of the copyright holder, considering that you have forged the contract. The fact is that the law does not provide for any other evidence of the legality of your use of the RIA, except for the express permission of the copyright holder. This means that it de facto remains a priority in solving controversial issues.
In addition to granting you individual rights limited by a license agreement, the right holder may assign you and all of his rights to the RID. Unlike a license agreement, this is called a contract for the alienation of exclusive rights. Of course, in this case the written form of the contract is also required, and the oral form entails its invalidity. But if everything is done according to the law, you become a copyright holder and get the right to file other lawsuits in cases of unlawful use of your RIA - demanding compensation for violation of your rights, of course. To facilitate the detection of such cases, you can embed appropriate algorithms in the REED. You become a member of the "copyright economy".
Agreements on the transfer of intellectual property rights can be either paid or free of charge. Legislation requires their written opinion, but leaves to the parties any material issues. For example, you can write a book, a painting or a computer program called “Dark Square” and, as the copyright holder, enter into a licensing agreement to use it for a million arbitrary units per month - this does not have to be money. But if you specify the money in the contract, the corresponding payments for the right to use the IED will turn out to be completely legal. For any amount. And this will not prevent you from giving the same RID (or its “abbreviated version”) to another person free of charge, specifying the corresponding condition in the contract. In other words, the Civil Code does not establish a connection between intellectual rights and any material values ​​and objects. The thing is in itself, the RID is in itself. The material value of the RID is determined only by the copyright holder.
Do you already understand the essence and meaning of copyright? :)
For individuals, the law gives some allowances that allow the use of many types of RID content (music, texts, pictures, videos, etc.) without the permission of the copyright holder - but only for personal purposes and with payment of remuneration to the copyright holder. However, it is better not to do it without need: since 2010 it is prohibited. And most importantly, no indulgences relate to computer programs: in this area, the law establishes general rules for both individuals and organizations. In addition, the Civil Code does not specify the amount of remuneration. It remains unclear how the statutory remuneration condition relates to the norm of the same law on the non-obligatory granting of rights to the IPA and the uncertainty of monetary amounts.
Buying a computer device does not give the right to use the program located in it.
From the point of view of the Civil Code of the Russian Federation, the right to use RIA refers to the so-called intellectual property rights. They do not depend on the ownership rights to the material carrier (thing), in which the RID is expressed. By purchasing a thing, you do not thereby acquire the intellectual rights to the IED expressed in this thing, as it was before. The transfer of ownership of a thing does not entail the transfer or the granting of intellectual rights to the intellectual property expressed in this thing. Therefore, the argument that your thing belongs to you will not be considered in court as an argument in favor of your right to use the IED expressed in this thing. Repeat: the only document proving your right to use someone else's IP is a license agreement between you and the copyright holder. The assumption that the right holder “does not object” to your use of the RID will not help, even if he really does not object: the Civil Code of the Russian Federation explicitly says that the absence of a ban by the right holder is not a permission.
The rule of law that the transfer of ownership of a thing does not entail the granting of intellectual rights to the corresponding REED is of particular importance for the IT sphere. With reference to a computer device, this provision means that the transfer of ownership of such a device to you does not entail the granting of intellectual rights to the software expressed in this device to you. In other words, buying a computer does not mean giving you the right to use any programs that are in it. Without the permission of the copyright holders their use is prohibited. This applies to all computer programs without exception. The CC does not make exceptions neither for the BIOS of the motherboard, nor for the firmware of the mobile device, nor for the script in the browser. Your assumption that the programs hit the computer correctly, does not give you the right to use them. If people had the right to use information only on the basis of their assumptions, as it was in the good old days, there would be no trace of copyright. But the fact of the matter is that the law does not give anyone such a right.
It is never too late to remember forgotten methods of counting with a pen and paper. It is safe and secure.
From a legal point of view, a computer program is “a collection of data and commands intended for the functioning of a computer and other computer devices in order to obtain a certain result”. Such a broad formulation includes almost any software of any computer devices - motherboards, calculators, industrial CNC machines, music synthesizers, video cameras, cameras, medical devices, smartphones, tablets, laptops, phones, video monitors, watches, timers, embedded computers vehicles and household appliances, industrial PLCs, traffic lights, distributed server systems, etc. Computer devices, for example, are standard keyboard and mouse - and at the same time, this definition includes the entire computer system in which they can be included. A computer device is considered to be an air traffic control panel as a whole, as well as each of its individual boards. In other words, the law does not stipulate the sphere of application of computer devices, their appearance, purpose, size, or the format of a “certain result” - the same rules of the right to use REED apply to all types of computer devices.
By the way, the “other computer devices” specified in the law do not have to be electronic. The rule of law applies to mechanical, optical and any other architectures to the same extent.
But analog electronic devices under the law in this case do not fall. The fact is that they cannot run the program. Such devices include, for example, an audio amplifier and an analog tape recorder. But digital audio equipment is already a computer device, because it executes or can execute "a set of data and commands intended for operation in order to obtain a certain result."
How concepts expand
Separately, we consider the validity of the storage of the RID. Is storage considered use? Suppose you have a carrier or computer device that contains a program in your office. Suppose the carrier or device is your property, but you do not have a license agreement that allows you to use this program. Could a simple storage of such a carrier or device in your office be considered illegal? Yes maybe. The fact is that in the legislation of the Russian Federation there is no exhaustive definition of the term “use of REED”. In the Civil Code, only some specific examples of the use of REEDs (in particular, the recording of REEDs in the computer's memory) are given.From a legal point of view, this means the validity of a broad interpretation of the term. Nothing prevents the court or the right holder from using the IDA to name its storage in any thing belonging to you that performs the function of a material carrier. In this regard, it is risky to use a carrier or device without a license, even as a stand for coffee.
Attention! «» . . . . — . — . — . , , , - -?
The wording of the Civil Code "using the work ... is considered, in particular: ..." leaves great opportunities for making decisions about what else might be the use. By the way, pay attention to the fact that even such incomplete wording applies only to works, and not to all REEDs.
For the sake of completeness, we add that “audio-visual displays generated by a program” are considered to be part of it, i.e. part of the RID author of a computer program. From a legal point of view, this formulation covers not some, but all “generated mappings”. This applies to the program of your camcorder, to a graphic editor, and to a text editor too. This applies to any program.
The future has come.In Russia, it happened on January 1, 2008. In other countries, progress is progressing at about the same pace.
Draw conclusions, ladies and gentlemen.
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To be continued...
Source: https://habr.com/ru/post/123698/
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