Intellectual property in the field of software. Expert answers

We continue the “ask questions to Intel experts” rubric. In the previous post, we voiced the topic of dialogue - “intellectual property in the field of software” and introduced our expert - senior engineer researcher at Intel, an expert in intellectual property, patent and copyright in software, Stanislav Bratanov . A sufficient number of your questions have been received in the comments and personal messages, now is the time to publish the answers to them. Questions asked publicly for the convenience of the search are provided with the author's nickname.

“How can we fix authorship and give the developed algorithm for universal use with the only requirement to mention its author-developer?”

I can offer patenting and the provision of a non-exclusive license, indicating, for example, that “the author must be mentioned by directly drawing text on the device containing the patented invention, including in the technical documentation, text applications to the accompanying software in the form of an unencrypted text file in the encoding standard for a system in which the above software must operate, as well as in any other way, allowing for to uniquely identify the author of the invention ", to an indefinite circle of persons for the duration of the patent - and for 20 years everyone will have to mention the author in the ways outlined above. If we are talking about a program that implements this algorithm, then a similar license can be placed in the source code of the program itself, but such a decision will not prevent the independent creation of other programs that implement this algorithm, the implementation of this algorithm in hardware and other use cases for which our requirement on the indication of the author will not be able to distribute.

Astrobeglec question:

I write small programs for solving specialized tasks. Some of these programs have closed counterparts, and they are paid (there are such tasks that it is easier to accomplish the task yourself than to pay and suffer with support). Now the actual question is - in the case of a dispute with the copyright holder, if he claims that I used his code, who should prove that the code is identical or similar to the existing closed one?

The burden of proof lies on who claims. It is necessary to prove that the program is a derivative work, that is, to create it, decompilation and / or study of the original program was used and the new program is similar to the original one, or fragments of the original program are used in the new program (in any form - machine-readable or original).

EndUser Question:

What is the subject of intellectual property rights in software? Compilation within your project? Extracting tricks and ideas from code research? Selling software with the library in question? Please list all aspects that are governed by this area of ​​jurisprudence. I understand that they are twenty to fifty, and even to list them is problematic.

Here, as I understand it, there are two questions: “What is copyrighted in the field of software?” And “What actions are in violation of the exclusive right?”
1. The object of copyright is recognized as a computer program as a collection of data and commands intended for the functioning of computer devices, expressed in any form, as well as preparatory materials and audio-visual displays generated by the program.
2. With respect to copies received unlawfully, any actions are a violation. With regard to legally acquired copies, any actions that are not explicitly authorized by the copyright holder, with the exception of backup, and the study, decompilation, modification in order to eliminate errors or ensure the functioning of the technical means of the user. The general rule is the following: it is not allowed to put into a copy of a copy even a lawfully acquired work without explicit permission from the copyright holder.
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Nutterix Question:

Did you come across any examples of litigation in Russia about the plagiarism of the source code of computer programs? And if so, with examples please.
Since in the USA, for example, there are plenty of such examples (and it’s judicial ones), while in Russia from such cases I remember only a lawsuit against Aeronavigator LLC in relation to its Meridian program and only.

I was not interested in this issue.

Question of PapaBubaDiop :

What percentage of differences in the code gives the right to consider the program the author?
How many pixels do I need to change in the original picture 128 by 128 to make it yours?

If you honestly approach this issue, then no matter how much you change, anyway, a new work will be a derivative (by definition: it is obtained by changing the original one). Another thing is that in many cases the existence of a connection between the original work and the derivative is very difficult to prove. On the other hand, it is possible (theoretically) to create your own work absolutely independently, which will be identical to the existing one, and each author will have the exclusive right to his own work.

How does Russian legislation in this area correlate with foreign? In what aspects is it stricter, in which - more liberal?

Comparison is a separate large topic. Yes, and it is difficult to compare: fines in different countries are calculated from the level of income or from the amount of damage, and, of course, in the US they will always be higher. The terms of imprisonment are also difficult to compare, since, for example, in the United States the terms of imprisonment are usually higher, but there is another parole system, therefore it is difficult to say who will actually stay longer.

How do you feel about the latest legislative initiatives in the Russian Federation (for example, such )? How much can they make life difficult for software developers and users?

Law-abiding developers and users only make it easier, since the legislator (allegedly) takes their side (although by placing their product on the network, the developer can easily be on the other side). Therefore, I am personally wary of extremes, although I am aware that this can be an effective measure in the fight against pirated websites. I would still look in the direction of simplifying court procedures / specialization of the courts, in order to ideally decide in one court the existence of rights, commit actions that violate them, determine the circle of perpetrators / proper respondent, or take adequate measures to ensure the claim identifying the perpetrators (blocking access to the site, individual files or to the account of an unidentified person who placed counterfeit materials on the site).

What the developer needs to know about patent claims?

The fact that when creating your programs there is always the risk of violating someone's patent and that after the introduction of the program into civilian circulation (on any conditions, for a fee or for free), you must be prepared for patent lawsuits.

On the Internet now there are many sites that partially or completely ignore AP (torrent trackers, online libraries, etc.) How do you see their future?

I believe that everything will be legalized over time: especially malicious violators for one reason or another will be closed, and the rest will find mutually beneficial solutions with the right holders (for example, they will facilitate / simplify / automate the conclusion of contracts with the right owners, optimize conditions, minimize fees from users, compensate for costs due to the monetization of the popularity of its resource, etc.).

Is it possible to overcome the fundamental contradiction in the field of accident management, leading to theft: the creator of the product wants to sell it at a higher price, and the buyer wants to buy it cheaper?
What does the developer need to do to protect their rights to the created software?

Only one way out - to create conditions under which stealing becomes more expensive than buying. There is no definite recipe. There are different strategies. If you try to answer in as general a way as possible, it is proposed to use all available protection measures, both technical and legal, to include the following: registration of software for protection against copying by competitors, patenting of an algorithmic solution for obtaining leverage on competitors, as well as providing the free version to popularize and "pull off" the market share of illegal software lovers.

Question batollo :

Since Creative Commons is not officially working in Russia yet, for the freest version of them, the status of public domain becomes the actual substitute. Tell me exactly how I can transfer my works to the public domain and what needs to be done to do this.
It is also extremely interesting whether it is possible to draw up an agreement on the transfer of contributions to the public domain in electronic form in the scenario “the user is registered on the site, accepts the agreement, rules the articles, and the edits automatically become public domain”.

The term “public domain” applies to objects of copyright, patent and related rights, whose validity of the exclusive right has expired. In your case, you just need to state the terms of the non-exclusive non-exclusive license in writing (directly in the text of the copyright object, in the annex to the copy, in the electronic system through which the object is accessed, etc.) and indicate that any the use of the object of copyright means acceptance of the terms of its use set forth in the license, that is, the conclusion of the license agreement.

Who, for what and how much can now get in Russia for actions that violate the copyright on software?

In response to this question, let me quote the relevant articles of the RF Code on Administrative Offenses and the Criminal Code of the Russian Federation:
RF Code of Administrative Offenses
Article 7.12. Infringement of copyright and related rights, inventive and patent rights
1. Import, sale, rental or other illegal use of copies of works or phonograms for the purpose of extracting income in cases where copies of works or phonograms are counterfeit in accordance with the legislation of the Russian Federation on copyright and related rights or on copies of works or phonograms false information about their manufacturers, about the places of their production, as well as about the owners of copyright and related rights, as well as other violation of copyright and related rights in order to extract the data Ode, except for the cases provided for by part 2 of article 14.33 of this Code, - shall entail the imposition of an administrative fine on citizens in the amount of from one thousand five hundred to two thousand rubles with confiscation of counterfeit copies of works and phonograms, as well as materials and equipment used to reproduce them, and other instruments of committing an administrative offense; on officials - from ten thousand to twenty thousand rubles with confiscation of counterfeit copies of works and phonograms, as well as materials and equipment used for their reproduction, and other instruments of an administrative offense; for legal entities - from thirty thousand to forty thousand rubles with confiscation of counterfeit copies of works and phonograms, as well as materials and equipment used for their reproduction, and other instruments of an administrative offense.
2. Illegal use of an invention, utility model or industrial design, except as provided for in paragraph 2 of Article 14.33 of this Code, disclosure without the consent of the author or applicant of the invention, utility model or industrial design prior to the official publication of information about them, attribution of authorship or coercion co-authorship - entails the imposition of an administrative fine on citizens in the amount of from one thousand five hundred to two thousand rubles; on officials - from ten thousand to twenty thousand rubles; on legal entities - from thirty thousand to forty thousand rubles.
Criminal Code of the Russian Federation
Article 146. Infringement of Copyright and Related Rights
1. Assignment of authorship (plagiarism), if this act caused major damage to the author or other rightholder, is punished with a fine of up to two hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to eighteen months, or compulsory work for a period of up to four hundred eighty hours, or correctional labor for up to one year, or arrest for up to six months.
2. Illegal use of copyright or related rights, as well as the acquisition, storage, transportation of counterfeit copies of works or phonograms for marketing purposes, committed on a large scale - shall be punished with a fine of up to two hundred thousand rubles or in the amount of the salary or other income of the convict for a period of up to eighteen months, either by compulsory work for up to four hundred and eighty hours, or by corrective labor for up to two years, or by forced labor for up to two years, or Ishenim liberty for the same period.
3. The acts provided for in part two of this article, if they are committed:
b) by a group of persons by prior agreement or by an organized group;
c) on a large scale;
d) by a person using his official position - shall be punished with forced labor for up to five years or imprisonment for up to six years with a fine of up to five hundred thousand rubles or in the amount of the salary or other income of the convicted person for a period of up to three years or without such
Note. The acts provided for in this article are deemed to be committed on a large scale if the cost of copies of works or phonograms or the cost of rights to use objects of copyright and related rights exceed one hundred thousand rubles, and on a large scale one million rubles.
Article 147. Breach of Inventive and Patent Rights
1. Illegal use of an invention, utility model or industrial design, disclosure without the consent of the author or applicant of the invention, utility model or industrial design prior to the official publication of information about them, attribution of authorship or coercion to co-authorship, if these acts caused major damage - shall be punished with a fine up to two hundred thousand rubles or in the amount of the salary or other income of the convict for a period of up to eighteen months, or compulsory work for a period of up to four hundred and eight five hours, either by forced labor for up to two years, or imprisonment for the same period.
2. The same acts committed by a group of persons in a preliminary conspiracy or an organized group - shall be punished with a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of the salary or other income of the convicted person for a period of one to two years, or by forced labor for up to five years, or arrest for up to six months, or imprisonment for up to five years.
The delimitation of the administrative structure from the criminal one is made according to the size of the damage caused.