Who are we: creators or artisans? Says the law ...
Good day to all…
It would not seem that such reasoning is not the place "here", but nevertheless, I see that some of my colleagues will find the following described interesting ... At least in the environment of "our brother" curiosity is something natural, and even that degree is unifying.
Let's digress for some indefinite, but obviously short time. We will listen to the spirit of the time, reasoning and the views of learned men (and not only men) about what our profession is with you, what is the result of our work with you, how to deal with it,who to pay , how to protect.
Imagine for a moment two, by itself our colleagues, here they sit at a table in an institution: a laptop, tablet, coffee, everything as usual, it was thousands and hundreds of times ... but no, this time they will meetfor life and death in the holy battle of the dispute, which somehow does not initially imply anyone's victory in it, the main thing is the process, and what is their question on the agenda?
')
and now we are so close that we can hear what they are saying ...
- Yes, this is not new, you know? Not original. With a constant frequency, probably the majority of professionals ask this question, here you are, the artists were tortured back in 2004, and here the advertisers reason, whoa, football players :) heh ... okay, this is so offhand. Well, shall we drive water from a sieve, but what's the point?
- Well, today I am fully armed. (opening on the screen a selection of links and documents)
- Preparing for what?
- And then ... (intonation gives sarcasm) Are we law-abiding with you?
- What do you mean?
- And you know, they have already thought of us, and by the way quite a long time. Here listen, settle down more conveniently, and perhaps order more coffee, I will come from far away ...
- Initially, at the dawn of a computer, the concepts of “software” and “hardware” were not differentiated, since data processing devices were perceived, at that time (1940-1950) as a kind of whole, and they were sold could not become the subject of separate contracts and were a trade secret.
The owners of the programs during this period were large computer manufacturers who were interested in maintaining their full control over the new invention and using the familiar tools of patent law and legal protection of trade secrets.
The beginning of the wide penetration of technology into the life of society led to the first attempts to consider the problem from a legal point of view. The World Intellectual Property Organization convened a group of experts on this issue for the first time in 1978 and prepared “Model Regulations on the Protection of Computer Software”, which were proposed to national legislators as a model for the development of relevant legislation. These provisions consisted of nine sections containing definitions of basic terms, basic software rights and the conditions of their occurrence, as well as the period of validity, possible compensation.
Meanwhile, it is worth noting that those who discussed this issue unanimously decided that both the computer programs themselves and all other results of the software development process (analysis and definition of the problem, system development, coding, documentation) meet the requirements set by the legislation, legal theory to the concept of " work ": they are the result of the creative, the activities of the author and are expressed in an objective form.
- And here I seem to have begun to understand what you are driving at ... (smiling)
- Listen, listen, this is just the beginning. So ...
In Russia, computer programs and databases as objects of copyright first appeared in legislation in 1991, when the Fundamentals of Civil Legislation of the USSR and the Republics were adopted. This decision was enshrined in the Foundations of Civil Legislation of the USSR and the Republics of 1991, and in Art. 1 of the Law of the USSR of 31.05.1991 No. 2213-1 “On inventions in the USSR” (many provisions of which reproduce the provisions of the European Patent Convention), indicating that algorithms and computer programs are not recognized as inventions, it was decided not to single out computer programs and databases data as separate objects of intellectual property, and to use legal relations to regulate related relations is a right by analogy, while works of art and literature are chosen by analogy, which actually means that they are legally equal to and are protected on the same basis and procedure.
- Well, how do you "feed"? Works of art and literature ... in my question “Who are we: creators or artisans?” - fell off by itself, once the result of our work, is protected as art, therefore it is them, therefore we are creators! I agree?!
“Well, it's hard to argue here, though ...”
- (interrupts) And rightly ... because it's too early to argue, listen further ...
The current Civil Code of the Russian Federation also establishes the position that computer programs can be subject to copyright, but not patent law, they are not considered works of literature, but only protected as such (Article 1259, 1261, 1350 of the Civil Code of the Russian Federation ).
- Come on! What is it like ?!
- And so, they are not considered works of literature, but are protected as such.
- And what does this work?
The legislator proceeds from the evidence that computer programs can respond to the features of copyrighted objects, they can be created by human creative work (this feature follows from the provisions of Art. 1228, 1257 and 1259 of the Civil Code of the Russian Federation) and are expressed in an objective form (this symptom follows from the first paragraph of article 1259 of the Civil Code of the Russian Federation).
Obviously, the importance of choosing copyright protection of computer programs in Russia was also due to the fact that in most foreign countries this issue was resolved in the same way, and establishing a different order in the Russian Federation would exclude our state from the system of international protection.
While in Russia during the period of the Law on Copyright, the contents of the database as a set of data were not protected, in the countries of the European Union, by virtue of the 1996 Directive, two types of database protection were established. The database as a creatively created collection of works, data or other independent elements, set out in a systematic or methodical way and available in electronic or other form ”is to be protected in accordance with copyright standards ... However, in addition to the content of the database, legal protection, sui generis law is introduced (a special kind of law). Now, however, the national legislator still defines the protection of databases, in contrast to the data included in its composition separately, the aggregate database is subject to protection provided that the conditions established by the legislator are met (blurred, which is characteristic of our legislation), namely: verification or presentation of which required significant in terms of quantitative or qualitative indicators of investment .
- Quantitative and qualitative investments ... this is the first imbalance, any result of handicraft work is assessed in this way.
- Well ... Databases and computer programs are almost inseparable, while they are protected separately, but this is not the main thing, I tell you so "from fire to fire", confusing ... listen further ...
The protected elements of the program include the so-called literal components of the programs, which include the source text (the code that is in a readable form that the programmer understands) and the object code.
There is a point of view that the protection of an object code by copyright norms is not quite traditional, since works, as a rule, are expressed in a form understandable to man, the object code is in machine-readable form and is understood only by a computer.
At the same time, it appears that computer programs in this part may be comparable with such copyright objects as musical recordings. The source text is similar to a musical score, which can also be read only by persons with special knowledge, and the object code that only a computer can understand is similar in nature to the sound recording of a musical work, which can only be converted into a form that can be understood by humans. playback device).
- Well, damn, they also dragged the music here ...
- Well, it's not that the music itself is like an analogy, I will not bore you with monologues any more, but I can only say that the topologies of integrated circuits, my dear DIY lover (smiles), are considered and protected by law as works of architecture that can hardly be called art.
And now argue, my dear friend ...
It would not seem that such reasoning is not the place "here", but nevertheless, I see that some of my colleagues will find the following described interesting ... At least in the environment of "our brother" curiosity is something natural, and even that degree is unifying.
Two
Let's digress for some indefinite, but obviously short time. We will listen to the spirit of the time, reasoning and the views of learned men (and not only men) about what our profession is with you, what is the result of our work with you, how to deal with it,
Imagine for a moment two, by itself our colleagues, here they sit at a table in an institution: a laptop, tablet, coffee, everything as usual, it was thousands and hundreds of times ... but no, this time they will meet
')
and now we are so close that we can hear what they are saying ...
Question
- Yes, this is not new, you know? Not original. With a constant frequency, probably the majority of professionals ask this question, here you are, the artists were tortured back in 2004, and here the advertisers reason, whoa, football players :) heh ... okay, this is so offhand. Well, shall we drive water from a sieve, but what's the point?
- Well, today I am fully armed. (opening on the screen a selection of links and documents)
- Preparing for what?
- And then ... (intonation gives sarcasm) Are we law-abiding with you?
- What do you mean?
- And you know, they have already thought of us, and by the way quite a long time. Here listen, settle down more conveniently, and perhaps order more coffee, I will come from far away ...
Problem
- Initially, at the dawn of a computer, the concepts of “software” and “hardware” were not differentiated, since data processing devices were perceived, at that time (1940-1950) as a kind of whole, and they were sold could not become the subject of separate contracts and were a trade secret.
The owners of the programs during this period were large computer manufacturers who were interested in maintaining their full control over the new invention and using the familiar tools of patent law and legal protection of trade secrets.
The beginning of the wide penetration of technology into the life of society led to the first attempts to consider the problem from a legal point of view. The World Intellectual Property Organization convened a group of experts on this issue for the first time in 1978 and prepared “Model Regulations on the Protection of Computer Software”, which were proposed to national legislators as a model for the development of relevant legislation. These provisions consisted of nine sections containing definitions of basic terms, basic software rights and the conditions of their occurrence, as well as the period of validity, possible compensation.
Meanwhile, it is worth noting that those who discussed this issue unanimously decided that both the computer programs themselves and all other results of the software development process (analysis and definition of the problem, system development, coding, documentation) meet the requirements set by the legislation, legal theory to the concept of " work ": they are the result of the creative, the activities of the author and are expressed in an objective form.
- And here I seem to have begun to understand what you are driving at ... (smiling)
- Listen, listen, this is just the beginning. So ...
In Russia, computer programs and databases as objects of copyright first appeared in legislation in 1991, when the Fundamentals of Civil Legislation of the USSR and the Republics were adopted. This decision was enshrined in the Foundations of Civil Legislation of the USSR and the Republics of 1991, and in Art. 1 of the Law of the USSR of 31.05.1991 No. 2213-1 “On inventions in the USSR” (many provisions of which reproduce the provisions of the European Patent Convention), indicating that algorithms and computer programs are not recognized as inventions, it was decided not to single out computer programs and databases data as separate objects of intellectual property, and to use legal relations to regulate related relations is a right by analogy, while works of art and literature are chosen by analogy, which actually means that they are legally equal to and are protected on the same basis and procedure.
- Well, how do you "feed"? Works of art and literature ... in my question “Who are we: creators or artisans?” - fell off by itself, once the result of our work, is protected as art, therefore it is them, therefore we are creators! I agree?!
“Well, it's hard to argue here, though ...”
- (interrupts) And rightly ... because it's too early to argue, listen further ...
The current Civil Code of the Russian Federation also establishes the position that computer programs can be subject to copyright, but not patent law, they are not considered works of literature, but only protected as such (Article 1259, 1261, 1350 of the Civil Code of the Russian Federation ).
- Come on! What is it like ?!
- And so, they are not considered works of literature, but are protected as such.
- And what does this work?
The legislator proceeds from the evidence that computer programs can respond to the features of copyrighted objects, they can be created by human creative work (this feature follows from the provisions of Art. 1228, 1257 and 1259 of the Civil Code of the Russian Federation) and are expressed in an objective form (this symptom follows from the first paragraph of article 1259 of the Civil Code of the Russian Federation).
Obviously, the importance of choosing copyright protection of computer programs in Russia was also due to the fact that in most foreign countries this issue was resolved in the same way, and establishing a different order in the Russian Federation would exclude our state from the system of international protection.
While in Russia during the period of the Law on Copyright, the contents of the database as a set of data were not protected, in the countries of the European Union, by virtue of the 1996 Directive, two types of database protection were established. The database as a creatively created collection of works, data or other independent elements, set out in a systematic or methodical way and available in electronic or other form ”is to be protected in accordance with copyright standards ... However, in addition to the content of the database, legal protection, sui generis law is introduced (a special kind of law). Now, however, the national legislator still defines the protection of databases, in contrast to the data included in its composition separately, the aggregate database is subject to protection provided that the conditions established by the legislator are met (blurred, which is characteristic of our legislation), namely: verification or presentation of which required significant in terms of quantitative or qualitative indicators of investment .
- Quantitative and qualitative investments ... this is the first imbalance, any result of handicraft work is assessed in this way.
- Well ... Databases and computer programs are almost inseparable, while they are protected separately, but this is not the main thing, I tell you so "from fire to fire", confusing ... listen further ...
The protected elements of the program include the so-called literal components of the programs, which include the source text (the code that is in a readable form that the programmer understands) and the object code.
There is a point of view that the protection of an object code by copyright norms is not quite traditional, since works, as a rule, are expressed in a form understandable to man, the object code is in machine-readable form and is understood only by a computer.
At the same time, it appears that computer programs in this part may be comparable with such copyright objects as musical recordings. The source text is similar to a musical score, which can also be read only by persons with special knowledge, and the object code that only a computer can understand is similar in nature to the sound recording of a musical work, which can only be converted into a form that can be understood by humans. playback device).
- Well, damn, they also dragged the music here ...
- Well, it's not that the music itself is like an analogy, I will not bore you with monologues any more, but I can only say that the topologies of integrated circuits, my dear DIY lover (smiles), are considered and protected by law as works of architecture that can hardly be called art.
And now argue, my dear friend ...
Source: https://habr.com/ru/post/284784/
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