Computer programs and protection of rights to them in the innovative world
Today in the Congress Center of the Russian Chamber of Commerce and Industry within the framework of the VII International Forum "Intellectual Property - XXI Century" (April 21-25, 2014) one of the "round tables" was devoted to the section "Computer programs and protection of rights to them in the innovation world." The section was moderated by Uliana Zinina, Legal Advisor, Microsoft Russia. In her opening remarks, Ulyana noted the trend in the field of software protection: the big players are becoming online service providers in the cloud. Thus, they control the use of their software, because the user does not have to install a copy of the software product on his personal computer.
Speaker No. 1. Elena Voinikanis, Member of the UNESCO Department of Copyright and Other Intellectual Property Rights, Head of the Department for Government Relations of Rostelecom OJSC
The topic of the report: "Virtual migration and legal protection of computer programs: the formation of new regulatory strategies."
In her report, Elena Voinikanis voiced the modern point of view that there is no sense in protecting the copyright of software products in the “cloud”, since the holder has full control over the use of the product. However, Elena noted the following most particular violations of rights when using software products in the "cloud":
1. Transfer of access code (password) to colleagues.
2. Access to the product is provided by a large number of employees than licenses acquired (it seems to me that both of these common violations are directly related to each other).
Voynikanis also reported on the existing problem of the nature of the contract in the provision of services in the "cloud". The user does not download the software on his computer and does not receive a copy of the software in the property.
In conclusion, Elena Voinikanis noted that the main ways of protecting programs are confidentiality and the use of new technologies for information security tools, unauthorized use, etc.
Also at the Round Table there were positive reviews about the book by Elena Voinikanis “Intellectual property law in the digital age: the paradigm of balance and flexibility”. The book is available in the paid version of the system "Garant". Checked personally - it is. The book itself has not yet read.
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Speaker No. 2. Alexander Savelyev, lawyer of IBM
Topic: “SAAS as a new software distribution model. Legal aspect.
In his report, Alexander analyzed the problem of determining the legal nature of SAAS (Software as a Service), voiced by Elena Voinikanis.
Despite the fact that SAAS does not fit into article 1270 of the Civil Code of the Russian Federation, since a copy of the software is not provided to the user, Alexander believes that SAAS can be provided under a license agreement, since Article 1270 does not fully disclose the use of the result of intellectual activity, and referred to Article 1229 of the Civil Code of the Russian Federation, which states that “A citizen or a legal entity who has the exclusive right to the result of intellectual activity or the means of individualization (the right holder) may use such result or such a means at its discretion in any way not contrary to the law. " Therefore, a license agreement can still be made. In addition, there is such a practice in Russia. Some organizations for safety net create a “fat” client for its installation on the user's computer to access cloud services, thus, fitting into the norms of article 1270 of the Civil Code of the Russian Federation.
However, in the opinion of Savelyev, SAAS does not fully fit into the license agreement. There is no practical sense to use a license agreement, since copy of the software product does not go out of control of the copyright holder (or the licensor). Once the copy is not provided to the user, the copyright rules do not apply.
Alexander defined the following benefits from the use of the service agreement with respect to SAAS: while under the license agreement the payment is made upon the granting of the right to use the software itself, according to the service agreement it is possible to rate the payment depending on the amount of service received.
In addition, in some cases, SAAS is carried out in conjunction with other (non-IT) services, such as distance learning. In these cases, the contract must be mixed.
Alexander also noted the existing problem of concluding a license agreement “by click”. In the latest amendments to article 1286 of the Civil Code of the Russian Federation, lawmakers tried to solve problematic issues, but the "dark" spots remained. I will not describe the problem here, because she pulls on a separate article. I can only say that today the right holders (licensors) use the “click to click” licensing agreement at their own risk, the court may not recognize this agreement.
Speaker No. 3. Marina Karelina, Head of the Department of Theoretical and Practical Problems of Judicial Protection of Intellectual Property of the Russian Academy of Justice
Theme of the report: "Protection of intellectual property in the digital environment."
In her report, Marina shared the results of the anti-piracy law in the first six months.
In the period from August 1, 2013 to February 1, 2014, 133 applications were received for action on audiovisual works and films. 94 applications were accepted, 39 applications were immediately refused, 32 more applications due to the failure to provide documents on time.
In fact, as a result of the anti-piracy law, we received an administrative procedure to block access to sites.
In addition, Marina voiced the main problem faced by the law and society in the transition to the digital age: there is a mixture of public and private law. Far from all of this report I understood, therefore, in order to avoid misinterpretation of the words of Marina Karelina, I will refrain from further comments.
Speakers No. 4 and No. 5. Igor Nevzorov, Senior Manager, Head of the Intellectual Property Center of Ernst & Young in the CIS. Alexey Markov, partner of the practice of taxation and legal services of Ernst & Young in Moscow
The theme of the report: "Current legal problems of the protection of computer programs."
Igor and Alexey also noted the unresolved issues in Russia of the problem of the license agreement "by click".
The guys identified the low efficiency of legal proceedings in Russia as the key problem of protecting intellectual rights. Any rightholder cannot achieve non-repeatable violation of his rights. As a result, we have a situation in which many “minor” violators who, in court, are often recognized as bankrupt, violate the rights of rightholders. You can win one or more cases, but it is expensive and long to fight with every violator. As a result, we now have the following scheme: “a long trial is a minor respondent”. In addition, the court often mitigates liability.
In addition, Alexey spoke about the indirect method of searching for violators of rights of rights holders. If a certain firm appeals to Ernst & Young with a request to help prove the violation of their rights by another firm, then Ernst & Young uses, in particular, vacancies posted by the offending firm. If specialists in work with a software product are sought in vacancies, the right to use of which is supposed to be violated, then a request is made to check this firm.
Alexey also talked about the Black Envelope technology for creating hidden tags in the source code.
In addition, Alexey complained that, by analogy with Russia, an intellectual property court was established in England, which works faster and cheaper than the Russian equivalent.
Speaker No. 6. Olga Tushkanova, Deputy Head of the Engineering and Technical Examinations Department - Head of the Computer Expertise and Technology Department of the Forensic Expert Center of the Ministry of the Interior of the Russian Federation
The topic of the report: "The problems of the appointment and production of computer expertise in cases involving the violation of exclusive rights to computer programs and databases."
In her report, Olga revealed the following types of examinations: forensic and special.
In accordance with Article 146 of the Criminal Code of the Russian Federation criminal responsibility is assigned for the following types of violations:
1. Assignment of authorship (plagiarism);
2. Illegal use of software;
3. Manufacturing counterfeit software with a view to marketing.
Often, borrowing (theft) of a code occurs as follows: operators are embedded that change the source code, but do not change the functionality. For the examination and identification of such actions, a special American program is used, which, by the way, is very expensive.
In addition, Olga, in her speech, highlighted the following regulations:
1. Article 1299 of the Civil Code;
2. Article 272 of the Civil Code;
3. Article 273 of the Civil Code;
4. Law “On Information, Information Technologies and Information Protection”.
An excellent performance, but greatly accelerated in time, because the section at this point was already out of the time limit set by the organizers. Unfortunately, I could not get the presentation of the report.
Speaker No. 7. Alexander Tushkanov, Head of Antipiracy, Group IB
Topic: “Threats related to the presence of illegal content on the Internet and the use of unlicensed software. Analysis and solutions of Group IB. ”
There was no time left, therefore, Alexander's speech turned out to be very fast-paced. In his report, he presented the results of a study (as I understood, in conjunction with Microsoft) of threats to users when using illegal software, such as Trojans, phishing, fake links, system file modifiers, activators that provide data leakage and many others.
Alexander's recommendations are as follows:
1. Do not use illegal software.
2. Report all incidents to the information security service.
3. Use new information protection technologies and cloud services.
Conclusion
Traditionally, the forum "Intellectual Property - XXI Century" is represented by a variety of sections in the RF CCI, Rospatent and the Russian Academy of Sciences and is well organized. The speakers in most cases are high-level professionals.
What software to use is up to you. From myself as a professional in the field of intellectual property, I would like to wish users to use licensed software, and to developers - so that your software can be used legally. Good luck to all! I hope that someone is interested and someone from the Habrazhitelei will write a source code analysis program for the Ministry of the Interior of the Russian Federation))))
Speaker No. 1. Elena Voinikanis, Member of the UNESCO Department of Copyright and Other Intellectual Property Rights, Head of the Department for Government Relations of Rostelecom OJSC
The topic of the report: "Virtual migration and legal protection of computer programs: the formation of new regulatory strategies."
In her report, Elena Voinikanis voiced the modern point of view that there is no sense in protecting the copyright of software products in the “cloud”, since the holder has full control over the use of the product. However, Elena noted the following most particular violations of rights when using software products in the "cloud":
1. Transfer of access code (password) to colleagues.
2. Access to the product is provided by a large number of employees than licenses acquired (it seems to me that both of these common violations are directly related to each other).
Voynikanis also reported on the existing problem of the nature of the contract in the provision of services in the "cloud". The user does not download the software on his computer and does not receive a copy of the software in the property.
In conclusion, Elena Voinikanis noted that the main ways of protecting programs are confidentiality and the use of new technologies for information security tools, unauthorized use, etc.
Also at the Round Table there were positive reviews about the book by Elena Voinikanis “Intellectual property law in the digital age: the paradigm of balance and flexibility”. The book is available in the paid version of the system "Garant". Checked personally - it is. The book itself has not yet read.
')
Speaker No. 2. Alexander Savelyev, lawyer of IBM
Topic: “SAAS as a new software distribution model. Legal aspect.
In his report, Alexander analyzed the problem of determining the legal nature of SAAS (Software as a Service), voiced by Elena Voinikanis.
Despite the fact that SAAS does not fit into article 1270 of the Civil Code of the Russian Federation, since a copy of the software is not provided to the user, Alexander believes that SAAS can be provided under a license agreement, since Article 1270 does not fully disclose the use of the result of intellectual activity, and referred to Article 1229 of the Civil Code of the Russian Federation, which states that “A citizen or a legal entity who has the exclusive right to the result of intellectual activity or the means of individualization (the right holder) may use such result or such a means at its discretion in any way not contrary to the law. " Therefore, a license agreement can still be made. In addition, there is such a practice in Russia. Some organizations for safety net create a “fat” client for its installation on the user's computer to access cloud services, thus, fitting into the norms of article 1270 of the Civil Code of the Russian Federation.
However, in the opinion of Savelyev, SAAS does not fully fit into the license agreement. There is no practical sense to use a license agreement, since copy of the software product does not go out of control of the copyright holder (or the licensor). Once the copy is not provided to the user, the copyright rules do not apply.
Alexander defined the following benefits from the use of the service agreement with respect to SAAS: while under the license agreement the payment is made upon the granting of the right to use the software itself, according to the service agreement it is possible to rate the payment depending on the amount of service received.
In addition, in some cases, SAAS is carried out in conjunction with other (non-IT) services, such as distance learning. In these cases, the contract must be mixed.
Alexander also noted the existing problem of concluding a license agreement “by click”. In the latest amendments to article 1286 of the Civil Code of the Russian Federation, lawmakers tried to solve problematic issues, but the "dark" spots remained. I will not describe the problem here, because she pulls on a separate article. I can only say that today the right holders (licensors) use the “click to click” licensing agreement at their own risk, the court may not recognize this agreement.
Speaker No. 3. Marina Karelina, Head of the Department of Theoretical and Practical Problems of Judicial Protection of Intellectual Property of the Russian Academy of Justice
Theme of the report: "Protection of intellectual property in the digital environment."
In her report, Marina shared the results of the anti-piracy law in the first six months.
In the period from August 1, 2013 to February 1, 2014, 133 applications were received for action on audiovisual works and films. 94 applications were accepted, 39 applications were immediately refused, 32 more applications due to the failure to provide documents on time.
In fact, as a result of the anti-piracy law, we received an administrative procedure to block access to sites.
In addition, Marina voiced the main problem faced by the law and society in the transition to the digital age: there is a mixture of public and private law. Far from all of this report I understood, therefore, in order to avoid misinterpretation of the words of Marina Karelina, I will refrain from further comments.
Speakers No. 4 and No. 5. Igor Nevzorov, Senior Manager, Head of the Intellectual Property Center of Ernst & Young in the CIS. Alexey Markov, partner of the practice of taxation and legal services of Ernst & Young in Moscow
The theme of the report: "Current legal problems of the protection of computer programs."
Igor and Alexey also noted the unresolved issues in Russia of the problem of the license agreement "by click".
The guys identified the low efficiency of legal proceedings in Russia as the key problem of protecting intellectual rights. Any rightholder cannot achieve non-repeatable violation of his rights. As a result, we have a situation in which many “minor” violators who, in court, are often recognized as bankrupt, violate the rights of rightholders. You can win one or more cases, but it is expensive and long to fight with every violator. As a result, we now have the following scheme: “a long trial is a minor respondent”. In addition, the court often mitigates liability.
In addition, Alexey spoke about the indirect method of searching for violators of rights of rights holders. If a certain firm appeals to Ernst & Young with a request to help prove the violation of their rights by another firm, then Ernst & Young uses, in particular, vacancies posted by the offending firm. If specialists in work with a software product are sought in vacancies, the right to use of which is supposed to be violated, then a request is made to check this firm.
Alexey also talked about the Black Envelope technology for creating hidden tags in the source code.
In addition, Alexey complained that, by analogy with Russia, an intellectual property court was established in England, which works faster and cheaper than the Russian equivalent.
Speaker No. 6. Olga Tushkanova, Deputy Head of the Engineering and Technical Examinations Department - Head of the Computer Expertise and Technology Department of the Forensic Expert Center of the Ministry of the Interior of the Russian Federation
The topic of the report: "The problems of the appointment and production of computer expertise in cases involving the violation of exclusive rights to computer programs and databases."
In her report, Olga revealed the following types of examinations: forensic and special.
In accordance with Article 146 of the Criminal Code of the Russian Federation criminal responsibility is assigned for the following types of violations:
1. Assignment of authorship (plagiarism);
2. Illegal use of software;
3. Manufacturing counterfeit software with a view to marketing.
Often, borrowing (theft) of a code occurs as follows: operators are embedded that change the source code, but do not change the functionality. For the examination and identification of such actions, a special American program is used, which, by the way, is very expensive.
In addition, Olga, in her speech, highlighted the following regulations:
1. Article 1299 of the Civil Code;
2. Article 272 of the Civil Code;
3. Article 273 of the Civil Code;
4. Law “On Information, Information Technologies and Information Protection”.
An excellent performance, but greatly accelerated in time, because the section at this point was already out of the time limit set by the organizers. Unfortunately, I could not get the presentation of the report.
Speaker No. 7. Alexander Tushkanov, Head of Antipiracy, Group IB
Topic: “Threats related to the presence of illegal content on the Internet and the use of unlicensed software. Analysis and solutions of Group IB. ”
There was no time left, therefore, Alexander's speech turned out to be very fast-paced. In his report, he presented the results of a study (as I understood, in conjunction with Microsoft) of threats to users when using illegal software, such as Trojans, phishing, fake links, system file modifiers, activators that provide data leakage and many others.
Alexander's recommendations are as follows:
1. Do not use illegal software.
2. Report all incidents to the information security service.
3. Use new information protection technologies and cloud services.
Conclusion
Traditionally, the forum "Intellectual Property - XXI Century" is represented by a variety of sections in the RF CCI, Rospatent and the Russian Academy of Sciences and is well organized. The speakers in most cases are high-level professionals.
What software to use is up to you. From myself as a professional in the field of intellectual property, I would like to wish users to use licensed software, and to developers - so that your software can be used legally. Good luck to all! I hope that someone is interested and someone from the Habrazhitelei will write a source code analysis program for the Ministry of the Interior of the Russian Federation))))
Source: https://habr.com/ru/post/220593/
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