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Exposing 12 legal misconceptions about computer programs

Fallacy / Dangerous HabitIn fact …Our advice is simple:
1. We created the program and automatically became its authors and copyright holders. For the protection and sale of the program no documents need to be drawn up, because it is protected by copyright - ©!Indeed: a computer program is protected by copyright as a literary work (clause 1 of article 1259, article 1261 of the Civil Code of the Russian Federation).

But the fact that for the emergence of copyright does not require registration or compliance with any other formalities (paragraph 4 of Art. 1259 of the Civil Code of the Russian Federation) does not in any way relieve:
- from compliance with a set of criteria established by law;
- from the need to document the creation of the program and its rights to them.

Unformed SOFT law does not protect.
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It's simple: if you have a dispute over program rights, then without documents you cannot prove that (1) you had rights and (2) your rights were violated, (3) that this set of data and commands in the programming language is intellectual property (after all, different versions and releases do not create any new intellectual property).
The same is true when registering and making accounting entries.

In short: no documents = no intellectual property = no rights violations = no compensation for rights violations.		Draw up a lot of good and different documents when creating computer programs:
- contracts with authors;
- contracts with contractors;
- technical tasks;
- minutes of meetings and tests;
- agreements between co-authors;
- certificate of authorship;
- certificate of recognition of intellectual property;
- REED specification;
- certificate of registration of computer programs (Rospatent).
2. Any program is automatically protected by copyright - ©.Dangerous myth! After all, the programs are subject to the same requirements for obtaining protection by law as to other works.

The program should be created by the author's creative work (Art. 1228, 1257 and 1259 of the Civil Code of the Russian Federation) and many more conditions, without observance of which, the computer program is only the result of intellectual activity without legal protection.

Many developers of popular programs did not become millionaires just because they did not care about the design of their rights and documents.		Invite compliance evaluators to help.
To confirm the creative nature of creating a program, it is desirable to justify that the program has signs of novelty, uniqueness, and (or) originality.
3. The best way to avoid violating other software rights is to order the development of a program from “0” to a freelance programmer or, even better, from a company.The author (or company) may not sell you his work (but copy or modify someone else's), and you will still be liable to the real authors and rightholders, that is, from a bona fide purchaser you will become an infringer of someone’s intellectual rights and compensation for property damage on your shoulders.

Unfortunately, many programmers copy and paste into your product ready-made solutions, texts, images, without understanding that they violate the rights of their authors and developers.
As a rule, compensation and court costs exceed the cost of a legal program by 1-2 orders of magnitude!		Provide in the contract guarantees of legal purity of the product, liability for plagiarism, restrictions on disclosure and the obligation to be responsible for violations of the rights of third parties.

Always require the transfer of genuine source codes and draft versions.

The course, the history of the program can be recorded in the blog.

In the case of claims - the programmer must be involved in the dispute!
4. You can copy the program code or site without consequences. He is not protected and anyone can see it on the Internet.

Moreover, the author did not forbid copying the code (did not encrypt it).		A copyright protection mark is placed at will (art. 1271 of the Civil Code of the Russian Federation), at the same time it performs only the “decorative” function of specifying the copyright holder, but may also be evidence of the appropriation of exclusive rights of others.

As the lawyers say, the absence of a ban is not considered as consent
(Clause 1, Art. 1229 of the Civil Code of the Russian Federation).

Having a code or design in the public domain does not mean that you can safely take and use it!
In the whole civilized world, even free programs are distributed under open licenses containing a number of conditions and restrictions.		Get the author's (present) consent to use his work and enter into a licensing agreement with him.

Alert your developers in advance.
5. To become the owner of the program it is enough to hire a programmer and pay for his work under the contract.Performing work, for example, under an author's contract (art. 1288, art. 1296 of the Civil Code of the Russian Federation), and transferring the work on a tangible medium does not necessarily entail alienation or the granting of rights to the work created.
You may find yourself in a situation - ordered and paid for the work, received the result of the work, but did not receive any intellectual property rights.

Transfer of rights is an independent legal act, which must be unequivocally fixed by the contract and documentation.

In order for you to be recognized as the sole owner of the rights, this must be directly recorded in the documents.		Include in the contract conditions:
(1) on payment of royalties;
(2) on the granting or alienation of rights to the Customer;
(3) on the impossibility of waiving the right to make public.

Transfer of rights always draw up an act or include such conditions in the performance documentation.
6. Registration of the program at Rospatent protects my rights to 100%.Registration is made at the request of the Rightholder, declaratively (clause 1 of Art. 1262 of the Civil Code of the Russian Federation).
The issued Certificate is not a title document, since Rospatent is not responsible for its authenticity (clause 6 of Article 1262 of the Civil Code of the Russian Federation).

Thus, you can state absolutely any facts in a statement and get the corresponding Certificate (in confirmation of which you will find a blog about curious examples on our website).
But the need to prove the intellectual property and rights to it will lie with you even after the state registration of the computer program.

After registration of the computer program, agreements on the alienation of rights are also subject to state registration (clause 5 of article 1262 of the Civil Code of the Russian Federation). This causes additional difficulties in the process of selling software rights.		Thus, the meaning of state registration is reduced to depositing a program or even a separate fragment — do it yourself.

In a controversial situation, the Certificate can only confirm that at the time of state registration the program text or its fragment existed.

Therefore, to confirm the authorship and the fact of acquiring intellectual rights to software, and therefore for subsequent monetization, you need additional evidence and documents on authorship and rights.
7. Acquiring copyrights for a program from a legal entity is safer than from an individual author.The author of the result of creative activity can only be an individual (clause 3 of article 1228 of the Civil Code of the Russian Federation).

Most companies do not register their relationships with employees as they should, therefore, they do not receive the rights to the software product from them and assign and sell the rights of others.

Ask the contractor at least one signature from the developer - and see for yourself.
Now decide what is safer - a bird in the hands or a crane in the sky?		Obtain rights directly from the author or check the chain of transition rights - as a rule, it is difficult, then require certificates of recognition and intellectual property passports, copies of title documents.
8. I own 50% of the share capital - it means that the rights to the released SOFT also belong to me.The Company's member (or shareholder), the Law and the Charter provide only the rights to participate in the management of the Company.
Shareholders of a company do not legally own its assets, because only one person can be the owner - the company itself. The property of your Company is disposed of by its manager.

We met examples when intellectual property rights to software were included in the share capital. In this case, the value of the rights is determined on the basis of unsubstantiated statements of the “copyright holder” ... without documents.

Any conflict in the company will lead to the fact that the participant will receive only a small monetary compensation and will not be able to pick up the rights made.

And the size of your share does not matter in this case.		Understand the essence of contractual, corporate relations and legal forms of legal entities.

If you are involved in the development of SOFT'a and want to get right, arrange it separately.
9. If you hire a programmer under an employment contract, then all the software written by him will belong to the company-employer.

He gets his salary, and the company gets his software and rights.		An employment contract is not the only sufficient evidence of software rights (see, for example, the case “programmer vs VimpelCom” pravo.ru/court_report/view/80180 ).

The law and judicial practice require that the employer, besides the salary, also pay an award for the transfer of rights (clause 26 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 15 of 06/19/2006).

Salary is the payment for the performance of the labor function, and for creativity, the employee receives some money.		In addition to the employment contract, execute work assignments, reports on their fulfillment, acts of transferring the RID to the employer, and conformity assessment reports with arguments for the provision of legal protection to them.

Separate line - documents on the alienation of intellectual property rights and payment of royalties.
10. Advanced Site can be protected by a patent for an industrial design, and a regular site will still be stolen by competitors.

This also applies to site design.		Yes, it is possible, if this software and hardware complex is a composite intellectual property subject to technical solutions.

But even the most minimal changes in design (without changing ideas, concepts) will allow a competitor to bypass a patent.

In addition, the value of any site is its content, for this, patents have not yet been invented, these are works or know-how.

Competent study of the documentation allows you to protect the site as a work of design, graphics and literature - to prohibit its copying, processing and reproduction in other guises.

100% copy protection does not exist, but not all are copied and not always without consequences.		Assess the effect of the actions taken to protect with the cost of maintaining it.

Find out the time of registration of the patent - and are unlikely to be satisfied.

The right holder can independently arrange all the documents necessary for successful protection.

For violation of the rights to the work, you can recover compensation from 10 thousand to 5 000 000 rubles.
11. If I bought a disk (downloaded file) with the program and paid for it, then I can freely distribute and copy it.

By analogy with the book - I can give it to my friend.		Copying of the program is possible only for archival purposes and to replace a lost copy (paragraph 2 of paragraph 1 of article 1280 of the Civil Code of the Russian Federation).Check the license and terms of use of the program, do not violate the agreement with the copyright holder.

Even harmless copying or posting on a torrent can have serious consequences !.
12. Put soft on the balance sheet as intangible assets - yes it is unreal!The accountant cannot understand what documents are confirming the existence of an asset and the right to the results of intellectual activity: PBU 14/2007 "Accounting for intangible assets" requires these documents, but does not directly say which object requires which documents.

In these cases, it is recommended to look into the standards and guidelines of the “Intellectual Property and Innovations” series.

Your lawyer should know (or find out) what these documents are and how an accountant should reflect transactions in the account.		Contact lawyers who feel comfortable in accounting for intellectual property rights.

Competent accounting of intangible assets - and SOFT - is one of them, will bring it out of the category of “shadow products” into the main factor of capitalization.


Who warned - that is armed.

Source: https://habr.com/ru/post/173265/

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