Registration of rights to the software without registering itself
Dear Colleagues,
Especially top managers and owners of IT companies, which is quite frequent (if not absolutely routine) is the situation when the software company does not undergo any registration procedure in a software company.
That's right, our legislation allows us not to register software and extends to it practically the same rules as for literary works.
Indeed, the IT world is changing very much and it is quite possible that you should not waste time registering software, especially since it is not an easy and quick process.
')
Then the question arises: how to fix the rights for what the wages were paid to game designers, programmers, artists and other employees?
In the absence of registration, this is a rather complicated process.
Looking ahead, I will say that you need to fix the rights of the company with a whole set of documents.
So, what workers create is called a work piece.
An official work is considered to be the result of intellectual activity in the field of science, literature or art, etc., created by an employee as part of his official duties.
To recognize a work as a service, three conditions must simultaneously be fulfilled:
- an employment contract has been concluded with the author of the work;
- The duties of the author of the work include the creation of intellectual property;
- The product was created by the employee during the period of the employment contract.
If the creation of a work was NOT included in the work duties of an employee of the organization, it is NOT official.
The relationship between the employee and the employer is governed by the Labor Code. But issues related to the work of office, belong to the jurisdiction of civil law.
In paragraph 2 of Art. 1255 of the Civil Code of the Russian Federation (hereinafter - the Civil Code) lists the copyright on the result of intellectual activity:
1) exclusive right;
2) the right of authorship;
3) the author's right to name;
4) the right to inviolability of the work;
5) the right to publish the work.
The exclusive right means the right to use the work in any form and in any manner not contrary to the law (clause 1 of article 1229 and clause 1 of article 1270 of the Civil Code of the Russian Federation).
In accordance with paragraph 2 of Art. 1255 of the Civil Code of the Russian Federation the exclusive right belongs to the author. However, on the basis of a special provision of paragraph 2 of Art. 1295 of the Civil Code of the Russian Federation the exclusive right to an official work belongs to the employer.
(A labor or other contract between the employer and the author may provide otherwise. For example, that the author has exclusive rights to the service works or that the author gives the employer the possibility of limited use of the service work (clause 2 of Article 1295 of the Civil Code of the Russian Federation) - but this is a separate theme).
According to paragraph 2 of Art. 1295 of the Civil Code of the Russian Federation, if the employer for three years from the day when the work was placed at his disposal, does not start using this work, does not transfer the exclusive right to it to another person or does not inform the author about keeping the work in secret, the exclusive right to work The work belongs to the author - an employee of the organization, who directly created it.
If the employer starts using the work product within the specified period or transfers the exclusive right to another person, the author is entitled to remuneration.
The author acquires the said right to remuneration even in the case when the employer decided to keep the work in secret and for this reason did not start using this work within the specified period.
The amount of remuneration, the conditions and procedure for its payment by the employer are determined by the contract between him and the employee, and in the case of a dispute - by the court.
Summarizing the above, the employee must be formalized, have a properly executed labor contract and job description, which clearly outlines his duties, and there must be proof that he or she created some software (or part of it) for his job (for example, addressed by email or otherwise).
If these documents are available, the company can be confident in its rights to the software.
In the absence of one of these documents, any employee who participated in creating software can safely go to court and challenge the company's rights to software, and also force the company to pay money for illegal use, which sometimes amounts to considerable sums.
Especially top managers and owners of IT companies, which is quite frequent (if not absolutely routine) is the situation when the software company does not undergo any registration procedure in a software company.
That's right, our legislation allows us not to register software and extends to it practically the same rules as for literary works.
Indeed, the IT world is changing very much and it is quite possible that you should not waste time registering software, especially since it is not an easy and quick process.
')
Then the question arises: how to fix the rights for what the wages were paid to game designers, programmers, artists and other employees?
In the absence of registration, this is a rather complicated process.
Looking ahead, I will say that you need to fix the rights of the company with a whole set of documents.
So, what workers create is called a work piece.
An official work is considered to be the result of intellectual activity in the field of science, literature or art, etc., created by an employee as part of his official duties.
To recognize a work as a service, three conditions must simultaneously be fulfilled:
- an employment contract has been concluded with the author of the work;
- The duties of the author of the work include the creation of intellectual property;
- The product was created by the employee during the period of the employment contract.
If the creation of a work was NOT included in the work duties of an employee of the organization, it is NOT official.
The relationship between the employee and the employer is governed by the Labor Code. But issues related to the work of office, belong to the jurisdiction of civil law.
In paragraph 2 of Art. 1255 of the Civil Code of the Russian Federation (hereinafter - the Civil Code) lists the copyright on the result of intellectual activity:
1) exclusive right;
2) the right of authorship;
3) the author's right to name;
4) the right to inviolability of the work;
5) the right to publish the work.
The exclusive right means the right to use the work in any form and in any manner not contrary to the law (clause 1 of article 1229 and clause 1 of article 1270 of the Civil Code of the Russian Federation).
In accordance with paragraph 2 of Art. 1255 of the Civil Code of the Russian Federation the exclusive right belongs to the author. However, on the basis of a special provision of paragraph 2 of Art. 1295 of the Civil Code of the Russian Federation the exclusive right to an official work belongs to the employer.
(A labor or other contract between the employer and the author may provide otherwise. For example, that the author has exclusive rights to the service works or that the author gives the employer the possibility of limited use of the service work (clause 2 of Article 1295 of the Civil Code of the Russian Federation) - but this is a separate theme).
According to paragraph 2 of Art. 1295 of the Civil Code of the Russian Federation, if the employer for three years from the day when the work was placed at his disposal, does not start using this work, does not transfer the exclusive right to it to another person or does not inform the author about keeping the work in secret, the exclusive right to work The work belongs to the author - an employee of the organization, who directly created it.
If the employer starts using the work product within the specified period or transfers the exclusive right to another person, the author is entitled to remuneration.
The author acquires the said right to remuneration even in the case when the employer decided to keep the work in secret and for this reason did not start using this work within the specified period.
The amount of remuneration, the conditions and procedure for its payment by the employer are determined by the contract between him and the employee, and in the case of a dispute - by the court.
Summarizing the above, the employee must be formalized, have a properly executed labor contract and job description, which clearly outlines his duties, and there must be proof that he or she created some software (or part of it) for his job (for example, addressed by email or otherwise).
If these documents are available, the company can be confident in its rights to the software.
In the absence of one of these documents, any employee who participated in creating software can safely go to court and challenge the company's rights to software, and also force the company to pay money for illegal use, which sometimes amounts to considerable sums.
Source: https://habr.com/ru/post/172307/
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