Gingerbread for the people. Legal foundation for free culture and science

Throughout 2013 and 2014, the legislator showed us his insatiable paternal desire to take care of all of us, taking regulatory measures to ensure the information security of our children, and at the same time adults. Throughout the year, the unthinkable number of times was edited by the federal law “On Information”, “On Communication” and “On Mass Media”. Pursuing virtual pedophiles, terrorists and drug dealers, State Duma deputies did everything to expand the list of prohibited information, as well as to establish new rules for civil circulation of information in the Russian segment of the Internet.

Media lobbyists representing the largest US multinational corporations in the field of cinema, music and software, as well as a number of organizations serving the market for collective management of copyright and appreciating new legal mechanisms for blocking websites on the Internet, used the power-set trend to adopt the “anti-piracy law” ver .1.0, according to which the algorithm was installed to close access to file hosting services and digital libraries, providing the possibility of unauthorized copying of materials copyrighted. From the very beginning it was clear that this would not end the matter. Indeed, the law providing for a special procedure for protecting the legal interests of rights holders in relation to films, films, television films, and not protecting the interests of owners of other copyright objects, looks rather strange, because civil legislation does not know more or less priority objects of protection, providing for the same protection procedure exclusive rights of copyright holders of various copyright objects.
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Therefore, it is quite natural that after the adoption of the first version of the anti-piracy law, intense signals began to be received from various industries about the need to expand the law. Such requests came from copyright holders of works that were outside the “anti-piracy law”, as well as from organizations specializing in the fight against digital piracy. Thus, on July 4, 2014, the State Duma adopted in its second reading an “anti-piracy law” ver.2.0., Expanding its effect on all objects of copyright, except for photographs (this is explained by the fact that there are no societies for the protection of the rights of photographers lobbying their interests, currently in Russia does not exist).

It is no secret that the main principle in management is the alternation of carrot and carrot, which was first voiced in the Middle Ages by Niccolo Machiavelli (with the need to deviate towards the carrot) and described in detail by the American social psychologist Douglas MacGregor in “Theory X and Theory Y” 60s of the 20th century.

Perhaps, the whips, which beat on the rights of users of the Russian Internet and site owners in the Runet zone, have been quite a few lately, which cannot be said about gingerbread. One of such gingerbread, aimed at modern legal regulation of content circulation in the network in the era of instant information dissemination, was the law on free licenses , the provisions of which in the new edition of the Civil Code come into force on October 1, 2014.

STRUGGLE FOR FREE LICENSES

The Wikimedia Foundation , the Pirate Party of Russia , the Internet Publishers Association, the Internet Users Association and other organizations that constantly swayed the topic of free licenses made a significant contribution in order to start talking about free licenses at the highest state level. In 2012, President Medvedev, in the framework of the reform of civil legislation, commissioned the preparation of amendments to the Civil Code, providing for free licensing in Russia.

This resulted in the adoption of March 12, 2014 of the Federal Law No. 35-FZ, amending the 4th part of the Civil Code and establishing for the first time in the Russian legislation the institution of “free licenses”.

Disputes about the legal possibility of publishing copyrighted works under free licenses, according to the legislation of the Russian Federation, even before the adoption of special Medvedev amendments, took place on the Russian Internet, but it is worth noting that, in any case, the absence in the law of the concept of a free license hampered their use by virtue of mandatory conditions of art. 1235.2 of the Civil Code of the Russian Federation, which regulates that non-observance of the written form of a license agreement entails its invalidity, in connection with which there is a risk that the agreement will be declared not concluded.

FREE LICENSES - THE WAY TO CULTURAL AND SCIENTIFIC PROGRESS



Undoubtedly, free licenses, providing for free copying, distribution and modification, have long been a sign of good taste in the information society. The concept of free licenses first appeared in 1985 thanks to the American programmer Richard Stallman, who published the GNU Manifesto, in which he philosophically justified the importance of free software (software) and also criticized all objections of software vendors against free software. This is where the mass movement of free software developers began, which later gave rise to the free Linux operating system, as well as a large number of free open source software programs (from OpenOffice to mySQL). The further promotion of free licenses came about through the active work of one of the evangelists of open knowledge and culture, Professor Harvard University Lawrence Lessig, who standardized various licensing conditions under the auspices of Creative Commons (C), which are used today in more than 74 countries around the world. Authors who apply CC licenses allow the use of their works by any means indicated in the text of the license without any additional consent of the copyright holder, payment of remuneration to him, and without any restrictions on the territory and terms. CC licenses became the very golden mean, so necessary for society and authors in the era of rapid development of communication networks. They stood in the middle between the traditional copyright protection regime (“all rights reserved”) and the public domain (“no rights reserved”).

From the point of view of civil law, all Creative Commons licenses are public offers that do not require the signing of a written contract between the copyright holder and the user of the work, as well as any special registration. The commencement of the use of a work released by the author under the Creative Commons license is considered as a conclusive action, entailing the entry into force of this license agreement between the author and the user. At the same time, violation of the license terms by the user means termination of the contract.

Free licenses are divided into permissive (giving freedom to restrict freedom) and copyleft (giving the right to free use, distribution and modification). All Creative Commons licenses are non-exclusive, rights are not alienated. To apply a license, it is sufficient for the author to explicitly indicate the name of the license so that it can be unambiguously identified. It is also recommended to provide a link to the text of the license posted on creativecommons.org for a more detailed understanding of the content of the license itself. However, this is not a mandatory requirement, since the fairly user-friendly interface of Creative Commons licenses allows authors and users to understand the essence of the license agreement without even reading its brief description. This is achieved by the fact that the basic terms of license agreements are spelled out directly in the names of the licenses themselves as a combination of basic elements. Each license may also be denoted by letter abbreviation or as a graphic image.

NOW AND IN RUSSIA



Obviously, such amendments to the Civil Code create a legal opportunity to introduce into civilized civil circulation a huge array of so-called user-generated content (UGC - Users generated content), which is increasing every year. The media market (cinema, music, literature, games, software) in the information society is becoming more and more competitive, the authors have to constantly fight for the user audience, and therefore the old algorithms for distributing content to end users under proprietary licenses are becoming less and less popular. . That is why free licenses open up opportunities for young musicians, developers, designers and directors to distribute their works on the conditions convenient for themselves and society.

The use of free licenses can be beneficial for the public sector, which offers a new opportunity for deeper integration of free software into the public procurement system. Under the conditions set by the government for “import substitution” of proprietary foreign software controlled mainly by American IT giants, free licenses can enable government customers to independently use and modify open source and free software without any intermediaries and costly procurement procedures.

From October 1 st. 1286.1 of the Civil Code of the Russian Federation, providing for the possibility of issuing open licenses for the works created to a wide range of users.

Article 1286.1. Open license to use a work of science, literature or art
1. A license agreement under which a simple (non-exclusive) license to use a work of science, literature or art can be granted to a licensee by an author or another right holder (licensor) to a licensee (open license).
An open license is a contract of accession. All its conditions must be available to an indefinite circle of persons and placed in such a way that the licensee familiarizes them with them before using the relevant work. An open license may contain an indication of actions that will be considered as acceptance of its conditions (Article 438). In this case, the written form of the contract is considered to be complied with.
2. The subject of an open license is the right to use a work of science, literature or art within the limits provided by the contract.
The licensor may grant the licensee the right to use the work belonging to him to create a new result of intellectual activity. In this case, unless otherwise provided by an open license, it is considered that the licensor made an offer to conclude an agreement (clause 2 of Article 437) on the use of his work to any persons wishing to use the new intellectual result created by the licensee on the basis of this work, within on terms that are provided by open license. Acceptance of such a proposal is also considered as acceptance of the licensor’s proposal to enter into a license agreement for this work.
3. An open license is gratuitous, unless it provides otherwise.
If the period of validity of an open license is not specified, in respect of computer programs and databases, the contract is concluded for the entire duration of the exclusive right, and in respect of other types of works, the contract is considered to be concluded for five years.
If the open license does not indicate the territory in which the use of the relevant work is allowed, such use is allowed in the entire world.
4. The licensor who has granted an open license has the right to unilaterally withdraw the contract in whole or in part (clause 3 of Article 450) if the licensee grants to third parties the right to use the work owned by the licensor or to use the new result of intellectual activity created by the licensee on the basis of this works, outside of the rights and (or) on other conditions than those provided by an open license.
5. The author or other rightholder, if the exclusive right to a work is violated by unlawful actions to grant or use an open license, has the right to demand the application to the violator of the exclusive right protection measures in accordance with article 1252 of this Code.

However, despite the undoubtedly positive legislative phenomenon concerning the introduction of free licenses in the legal field, the legislator has allowed a number of seemingly incomprehensible restrictions on their use. For example, article 1286.1 of the Civil Code of the Russian Federation regulates that if a different period is not defined, then a free license is considered to be issued for a 5-year term. Although the construction of this article, in my opinion, would look more logical with the wording determining that if the author did not stipulate otherwise, a free license is considered to be issued for the whole period of copyright protection (the entire life of the author + 70 years after death).

Nevertheless, I would like to express the hope that the first step taken in the field of copyright reform will positively be used for cultural and scientific enrichment of Russian society, as well as provide further incentives for revising other provisions of copyright and patent legislation that hinder the development of modern technologies and dissemination of objects of scientific achievements and culture. Only this can give today the opportunity for Russia to take its place among the strongest technological countries with competitive intellectual products focused on the information society, so eagerly demanding more and more free culture, knowledge and software products.