New edition of the changes in the Civil Code: open licenses, providers responsibility and other interesting points
The draft of amendments to the Civil Code, published on September 17 on the website of the Committee of the State Duma of the Federal Assembly of the Russian Federation on Civil, Criminal, Arbitration and Procedural Legislation, contains new provisions that are generally interesting. The text is large, that's what I selected as the most interesting and tried to comment.
You can only make a “Application for granting any persons the opportunity to use for free” a work or an object of related rights on the official website of the federal executive body, which must be determined by the Government of the Russian Federation. During the specified period, the application can not be withdrawn, and the conditions of use can not be limited. At the same time, new moments appeared regarding the conflict of such an application with existing contracts - for example, compensation for damages for those with whom licensing agreements were previously concluded (the question arises as to what could be damages if it concerns a non-exclusive license).
The authors, apparently, positioned this system not as an implementation of opensource-licenses, but as something else, which seems to not disturb the opensource. And now a new article 1286-approx, “Open license for the use of works of science, literature and art” has been introduced into the project. It does not require posting on the official website, as described above. The article is quite large and detailed, probably its detailed reviews are still ahead, but so far only the fact that for all but programs if the period is not specified it is valid for five years, and only for “computer programs” for the whole period of protection is striking. . For such a license, a simplified procedure for concluding a contract and the possibility of protecting the rights of the author are provided.
"The ban on the implementation of actions in information and telecommunication networks" may be imposed in order to secure a claim, if "an assumption of violation of the exclusive right is put forward." Moreover, the demand can be made not only to the violator, as provided for in the current edition, but also to “other persons, without whose involvement it is impossible to stop actions that violate the right or threaten to violate it”, and these persons are considered “obliged to take measures” to curb violations - from different points of the draft amendments to Art. 1252
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Providers (in terms of the project, “information intermediaries”) are divided into those who “transmit the material” on the network and those who “provide the possibility of posting materials” on the network. Moreover, the liability is applied to them in the presence of the guilt of the violator (Art. 1252), as well as under certain conditions. If with respect to the first it is quite definite, that is, it is not the initiator of the transfer, does not determine the recipient and does not change the material except for technological purposes, then with the latter it is less certain. They should not be aware of the lawfulness of the use of the material, and “in the case of receiving a written application from the right holder” should take “necessary and sufficient measures”, which, in turn, are not defined in this text and their list and procedure for implementation “can be established by law "- from the draft art. 1253-ca. Here it should also be noted that the absence of guilt is proved by the violator, according to the new paragraph 4 of Art. 1250, and whether the intermediary is a violator here is not entirely clear.
A website is equated to a compilation or a composite work (art. 1260) (although if Wikipedia equates a website and a website, some other sources claim that the website is primarily a computer)
The digitization by libraries of copies of scientific and educational literature, which in the draft of the first reading was permitted with the condition of providing them to readers only at the library premises without the ability of users to create digital copies, is now subject to additional conditions - the publication should not be republished for 10 years on the territory of the Russian Federation, while digitizing the instance must belong to the library. But it can be transmitted, including in the order of mutual use of resources by libraries. Copies of theses may be created for transfer to other libraries (Art. 1275).
It remains from the last draft of the provision allowing archives to make copies of works posted on the Internet “with the exception of subsequent reproduction and bringing to the public” (and then the question arises, for what purpose?)
Freedom of photographing and drawing works of architecture complemented by urban planning and works of landscape art (Art. 1276)
The box license has been supplemented - now it can be indicated not only on the box, but also in electronic form (Article 1286 with reference to paragraph 2 of Article 444)
The amendments leave a dual impression. Part four and so very large and difficult to read, again complicated. The draft changes are being improved. Apparently, from the point of view of the legislator, this is a compromise between different requirements. According to media reports, it will be considered on September 26, so that the possibilities to influence it, apparently, have already been exhausted.
Open licenses and irrevocable waiver
You can only make a “Application for granting any persons the opportunity to use for free” a work or an object of related rights on the official website of the federal executive body, which must be determined by the Government of the Russian Federation. During the specified period, the application can not be withdrawn, and the conditions of use can not be limited. At the same time, new moments appeared regarding the conflict of such an application with existing contracts - for example, compensation for damages for those with whom licensing agreements were previously concluded (the question arises as to what could be damages if it concerns a non-exclusive license).
The authors, apparently, positioned this system not as an implementation of opensource-licenses, but as something else, which seems to not disturb the opensource. And now a new article 1286-approx, “Open license for the use of works of science, literature and art” has been introduced into the project. It does not require posting on the official website, as described above. The article is quite large and detailed, probably its detailed reviews are still ahead, but so far only the fact that for all but programs if the period is not specified it is valid for five years, and only for “computer programs” for the whole period of protection is striking. . For such a license, a simplified procedure for concluding a contract and the possibility of protecting the rights of the author are provided.
Responsibility, the shadow of the Chinese firewall, and information intermediaries
"The ban on the implementation of actions in information and telecommunication networks" may be imposed in order to secure a claim, if "an assumption of violation of the exclusive right is put forward." Moreover, the demand can be made not only to the violator, as provided for in the current edition, but also to “other persons, without whose involvement it is impossible to stop actions that violate the right or threaten to violate it”, and these persons are considered “obliged to take measures” to curb violations - from different points of the draft amendments to Art. 1252
')
Providers (in terms of the project, “information intermediaries”) are divided into those who “transmit the material” on the network and those who “provide the possibility of posting materials” on the network. Moreover, the liability is applied to them in the presence of the guilt of the violator (Art. 1252), as well as under certain conditions. If with respect to the first it is quite definite, that is, it is not the initiator of the transfer, does not determine the recipient and does not change the material except for technological purposes, then with the latter it is less certain. They should not be aware of the lawfulness of the use of the material, and “in the case of receiving a written application from the right holder” should take “necessary and sufficient measures”, which, in turn, are not defined in this text and their list and procedure for implementation “can be established by law "- from the draft art. 1253-ca. Here it should also be noted that the absence of guilt is proved by the violator, according to the new paragraph 4 of Art. 1250, and whether the intermediary is a violator here is not entirely clear.
miscellanea
A website is equated to a compilation or a composite work (art. 1260) (although if Wikipedia equates a website and a website, some other sources claim that the website is primarily a computer)
The digitization by libraries of copies of scientific and educational literature, which in the draft of the first reading was permitted with the condition of providing them to readers only at the library premises without the ability of users to create digital copies, is now subject to additional conditions - the publication should not be republished for 10 years on the territory of the Russian Federation, while digitizing the instance must belong to the library. But it can be transmitted, including in the order of mutual use of resources by libraries. Copies of theses may be created for transfer to other libraries (Art. 1275).
It remains from the last draft of the provision allowing archives to make copies of works posted on the Internet “with the exception of subsequent reproduction and bringing to the public” (and then the question arises, for what purpose?)
Freedom of photographing and drawing works of architecture complemented by urban planning and works of landscape art (Art. 1276)
The box license has been supplemented - now it can be indicated not only on the box, but also in electronic form (Article 1286 with reference to paragraph 2 of Article 444)
Total
The amendments leave a dual impression. Part four and so very large and difficult to read, again complicated. The draft changes are being improved. Apparently, from the point of view of the legislator, this is a compromise between different requirements. According to media reports, it will be considered on September 26, so that the possibilities to influence it, apparently, have already been exhausted.
Source: https://habr.com/ru/post/151822/
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