Legal protection of computer programs

Introduction

Due to the fact that there are many programmers in Habré and having read what they write about the legal protection of programs, I decided to try to write an understandable and practically applicable article.

Definition of a computer program in accordance with the Civil Code of the Russian Federation (Part IV) (hereinafter - the Civil Code of the Russian Federation).

In accordance with article 1261 of the Civil Code of the Russian Federation, a computer program is presented in an objective form a set of data and commands intended for the operation of a computer and other computer devices in order to obtain a certain result, including the preparatory materials obtained during the development of a computer program and the audiovisual display.
The copyrights to all types of computer programs (including operating systems and software systems), which can be expressed in any language and in any form, including the source text and object code, are protected in the same way as copyrights to works of literature.
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How are copyrighted protected?

In accordance with the Bern Convention (of which most countries are participants, including all the most developed, including the Russian Federation) for obtaining copyright on a work (to which the computer program is equated in accordance with article 1261 of the Civil Code of the Russian Federation) in the Russian Federation signatories to the Bern Convention, no formalities are required.
In civil law countries (to which the Russian Federation belongs), works are protected from the moment of their creation, which, of course, leaves open the practical question of evidence in court of the fact of creation of a work. However, it should be noted that there may be formalities in accordance with national law for the protection of the rights of its own citizens. In the member countries of the Bern Convention, all rights of foreign owners from other member states of the Bern Convention are protected without any formalities (no registration).

In most common law countries, fixation is a requirement: the work must be clothed in writing or recorded on a specific medium.

In the Russian Federation, the exclusive right to work (one of the components of copyright in accordance with article 1255 of the Civil Code of the Russian Federation) is governed by article 1256 of the Civil Code of the Russian Federation, which does not contradict the Bern Convention.

Choosing the best way to protect the software package

1. Protection as a copyright object.

As mentioned above, the copyright on the computer program is valid at the time of creation. To indicate the author of the computer program, as a rule, in the source code there is a copyright protection mark (“copyright”) and the names of the authors or the name of the legal entity, as well as the date of creation (first public reproduction). This is optional and does not create additional rights. It is a notification that the copyright belongs to a natural (physical) or legal (legal) persons.
To strengthen the position and ensure the guarantee of copyright in the Russian Federation there is a state registration of computer programs. Application for state registration of computer programs should contain the following materials:

• an application for state registration of a computer program, issued in the prescribed form and available for download from the FIPS website;
• addition to the application (if necessary - if several authors or rightholders);
• deposited materials identifying the computer program, including the abstract;
• document confirming the payment of state duty.

The deposited materials, as a rule, are a printout of the source text (full or fragments) up to 70 pages. Submission of deposited materials in a different form is allowed if there is a justification by the applicant that this form to a greater extent provides for the identification of the registered computer program. It is allowed to include in the composition of these materials the preparatory materials obtained during its development, as well as the audiovisual displays generated by it in any visually perceptible form.

The abstract contains information about the authors and copyright holders, annotation of up to 700 characters, type of computer, type and version of the OS, programming language and program size. The abstract is published in the official bulletin of Rospatent.
In addition, there are formal requirements for the design and binding of documents.
The fee is 1,700 rubles for an individual and 2,600 rubles for a legal entity.
The term of copyright in the Russian Federation is 70 years after the death of the last author. After that, the object goes into the public domain.

2. Registration as an object of patent law (industrial property).

The objects of patent law are inventions, utility models and industrial designs (in accordance with article 1345 of the Civil Code of the Russian Federation).
In this case, we will discuss the protection of the software package as an invention or utility model. In the Russian Federation, an industrial design protects the appearance of the product, and photographs are sent among the application materials. It is noteworthy, but in the USA, a sketch can be protected as an industrial design. So, at one time, Google received a US patent for an industrial design that protected the sketch of the main page of its search engine. In Russia, this is not a ride. In addition, we remember how Rospatent was not inclined to try Apple to patent the design of the iPad in Russia.

In accordance with Article 1350 of the Civil Code of the Russian Federation, a technical solution in any area relating to a product (in particular, a device, a substance, a strain of a microorganism, a culture of plant or animal cells) or a method (the process of performing actions on a material object using material ).

Thus, the legal protection of the software system as an invention is still possible as a method or device. However, this will not be a software package in its pure form, but a software and hardware complex.

Conditions of patentability of the invention: the invention is granted legal protection if it is new, involves an inventive step and is industrially applicable.

An invention is new if it is not known in the art. An invention involves an inventive step if it does not follow from a state of the art for a specialist. The prior art includes any information that has become publicly available in the world prior to the priority date of the invention.

An invention is industrially applicable if it can be used in industry, agriculture, health care, other sectors of the economy or in the social sphere.

The priority date, as a rule, is the date of filing an application for an invention in the FIPS.
In accordance with Article 1375 of the Civil Code of the Russian Federation, an application for an invention must contain:

• an application for the grant of a patent for an invention indicating the author of the invention and the person in whose name the patent (of the applicant) is requested, as well as their place of residence or location;
• a description of the invention, revealing it in sufficient detail to implement;
• claims, expressing its essence and fully based on its description;
• drawings and other materials, if they are necessary to understand the essence of the invention;
• essay.

To draw up a description of the invention, it is necessary to draw up a diagram of a software and hardware complex consisting of elements and the connections between them. It is necessary to disclose the principle of operation of this complex. Often in such inventions mathematical algorithms and their influence on the operation of the hardware are given. In particular, there are many so-called “software” patents at Microsoft, IBM and other IT companies, which is quite logical.

That which is protected is a formula. By writing it must be approached with special responsibility. In the formula it is necessary to disclose all features of the invention in the most “general” form in order to make the patent more difficult to circumvent. There are 2 types of writing formulas - the American model and the German (classical). In German, the distinctive part of the invention stands out. In the US, all features of the invention are simply listed. The German model facilitates the examination of the patent examiner, the American model facilitates the drafting of the formula to the applicant.

As for the utility model, it is, in fact, a simplified invention. A technical solution related to the device is protected as a utility model. Unlike the invention, the method is not patented as a utility model.

Legal protection is provided to the utility model if it is new and industrially applicable. The composition of the documents that must contain an application for a utility model is the same as for an application for an invention.

The validity period of an exclusive right to an invention, utility model, industrial design and patent certifying this right is calculated from the date of filing the initial patent application to the federal executive body on intellectual property and subject to the requirements established by this Code, is:

• twenty years for inventions;
• ten years - for utility models

A patent may prematurely terminate the action in the event of non-payment of fees for renewal in fixed periods, or even canceled in case of non-compliance with patentability criteria, identified analogues with an earlier priority date and other cases.
Also in some cases, the term of the patent may be extended.

Conclusion

Protection of a computer program (software complex, operating system) as an object of copyright does not require any formal actions. Copyright is valid upon creation. In order to fix the rights, you can use the state registration. In addition, state registration may be advisable when entering into licensing agreements and participating in tenders. In such situations, evidence confirming the presence of a protected result of intellectual activity is not superfluous. The cost of legal protection is minimal, there is no need to extend the validity of the title of protection.
Obtaining a patent for an invention will provide stronger legal protection. Large IT companies patent each technology separately in order to monopolize the market and enter into licensing agreements. So, at the expense of a strong patent office, Microsoft earns more on sales of smartphones with Android OS than on its own mobile OS only at the expense of licensing fees.

However, one should not forget that it may take from one to two years to obtain a patent for an invention; therefore, it is necessary to patent at the R & D stage. A utility model can be obtained from 4 to 8 months, which may be an acceptable solution for protecting a business.
Obtaining a certificate of state registration usually takes 2-3 months.

PS I apologize for the lack of writing talent. I wanted to describe the methods of legal protection of software systems as briefly as possible, but in an accessible language. Perhaps someone will find this useful.
PPS If it will be interesting, I will write about the author's remuneration for the creation of official results of intellectual activity and the corresponding practice of legal relations between the employer and the inventors.