Settlement of legal relations between an employee and an employer when creating a utility program for a computer
As I wrote in the previous article, the computer program is subject to copyright and protected as a work of science, literature and art.
If a computer program is created within the established job duties for an employee, then such a computer program is protected as an official work (art. 1295 of the Civil Code of the Russian Federation). This means that the copyright belongs to the employee, and the exclusive right (that is, the right to use the program at its discretion in any manner not contrary to the law) to the computer program belongs to the employer.
In order to create a computer program fell under the article "service invention", the employer must approve clear job descriptions of the employee, implying the creation of such a result by the employee. In addition, the labor contract usually contains the phrase “the results of work created during the performance of labor duties belong to the“ Organization ”as an employer, and the employee agrees to alienate exclusive rights to the results of intellectual activity created during the execution of these works in favor of the employer”. Also common is the practice of concluding, in addition to an employment contract, a contract on the performance results of intellectual activity (presented as an example, there may be a different name in different organizations). This contract usually states that the employee’s work is creative in nature and implies the creation and recording of intellectual activity results, as well as the fact that these results are official and the exclusive right to them in accordance with the legislation of the Russian Federation belongs to the employer.
In order not to lose the exclusive right to the computer program created by the employee, the employer should know the following:
1. If the contract on the performance results of intellectual activity has not been concluded with the employee, and the employee’s job duties do not imply the creation of a computer program, the employer must issue a task for the employee to create this computer program in writing.
2. All contracts and assignments must be drawn up prior to the commencement of work involving the creation of the result of intellectual activity.
Upon the creation of a computer program, an employee must notify the employer accordingly. As a rule, the notification form is provided for by local regulations. If there is no such order in the organization, the author may submit such a notice in free form in writing.
In order to get personal benefit from creating a computer program, the employee (the author of this computer program) must know the following:
1. If an employer, within three years from the day when the computer service program was put at his disposal (usually this day is the date of filing the notification of the creation of a computer service program), will not start using this computer program, will not transfer the exclusive right to its use to another person or fails to inform the author about the preservation of the computer program in secret, the exclusive right to the computer work program passes to the author, and the employer can use the computer program for his own needs under conditions of Non-refundable simple (non-exclusive) license during the entire term of the exclusive right.
2. Author's remuneration is not a salary and must be paid in accordance with paragraph 2 of article 1295 of the Civil Code of the Russian Federation. However, the amount of remuneration for the use or alienation of a computer program (as opposed to the use and alienation of an invention), as well as when the employer decides to keep the computer program secretly, is not regulated by the legislation of the Russian Federation and is established by agreement between the employee and the employer, and in the event of disputes by the court.
Since on “Habré” there can be freelancers and companies involved in writing computer programs to order, I will add two general cases on the settlement of legal relations between the customer and the performer.
Settlement of legal relations between the customer and the contractor in the creation of computer programs and databases for the order
In accordance with Art. 1296, if a computer program or database is created under a contract, the subject of which is the creation of this computer program or database (on request), the exclusive right to such a computer program or database belongs to the customer, if the contract between the customer and the contractor (performer) does not provide otherwise. In this case, the contractor (performer) is entitled to use this computer program or database for its own needs on the terms of a gratuitous simple (non-exclusive) license for the entire duration of the exclusive right.
If, under the terms of the contract between the customer and the contractor (performer), the exclusive right belongs to the performer, then the customer has the right to use this computer program or database for his own needs on the terms of a gratuitous simple (non-exclusive) license during the entire term of the exclusive right.
The author of an on-demand computer program or database that does not have an exclusive right to them is entitled to the same remuneration as described above.
')
Settlement of legal relations between the customer and the contractor in the creation of computer programs and databases under the contract
In accordance with Article 1297, if a computer program or database was created during the execution of a contract or research and development contract that did not explicitly provide for the creation of this computer program or database, the exclusive right to such a computer program or database belongs to the contractor, if the contract between the customer and the contractor (performer) does not provide otherwise. In this case, the customer has the right to use this computer program or database for its own needs under the terms of a gratuitous simple (non-exclusive) license for the entire duration of the exclusive right, even if the contractor has transferred the exclusive right to another person, unless otherwise provided by the terms of the contract.
If, under the terms of the contract between the customer and the contractor (performer), the exclusive right belongs to the customer, then the performer is entitled to use this computer program or database for his / her own needs on the terms of a free (non-exclusive) license for the entire duration of the exclusive right.
The author of an on-demand computer program or database that does not have an exclusive right to them is entitled to the same remuneration as described above.
Conclusion
In order not to infringe upon the interests of either the employer or the author when creating a utility program for a computer, the following should be remembered:
All issues related to the creation of the results of intellectual activity and the disposition of exclusive rights to them must be resolved between the employee and the employer in WRITTEN form before the commencement of work. For settling legal relations between an employer and an employee, as a rule, an employment contract, job descriptions and an agreement on the performance results of intellectual activity are used.
Author's remuneration is NOT a salary. An employee who is the author of a computer software service has the right to remuneration for using or disposing of this computer program and when the employer decides to keep this computer program secret in accordance with clause 2 of article 1295.
PS The topic of the article does not fully correspond to the hub topic. Site rules limit the placement of this article in the hubs "Copyright" and "Durax", so please do not consider me illiterate.
If a computer program is created within the established job duties for an employee, then such a computer program is protected as an official work (art. 1295 of the Civil Code of the Russian Federation). This means that the copyright belongs to the employee, and the exclusive right (that is, the right to use the program at its discretion in any manner not contrary to the law) to the computer program belongs to the employer.
In order to create a computer program fell under the article "service invention", the employer must approve clear job descriptions of the employee, implying the creation of such a result by the employee. In addition, the labor contract usually contains the phrase “the results of work created during the performance of labor duties belong to the“ Organization ”as an employer, and the employee agrees to alienate exclusive rights to the results of intellectual activity created during the execution of these works in favor of the employer”. Also common is the practice of concluding, in addition to an employment contract, a contract on the performance results of intellectual activity (presented as an example, there may be a different name in different organizations). This contract usually states that the employee’s work is creative in nature and implies the creation and recording of intellectual activity results, as well as the fact that these results are official and the exclusive right to them in accordance with the legislation of the Russian Federation belongs to the employer.
In order not to lose the exclusive right to the computer program created by the employee, the employer should know the following:
1. If the contract on the performance results of intellectual activity has not been concluded with the employee, and the employee’s job duties do not imply the creation of a computer program, the employer must issue a task for the employee to create this computer program in writing.
2. All contracts and assignments must be drawn up prior to the commencement of work involving the creation of the result of intellectual activity.
Upon the creation of a computer program, an employee must notify the employer accordingly. As a rule, the notification form is provided for by local regulations. If there is no such order in the organization, the author may submit such a notice in free form in writing.
In order to get personal benefit from creating a computer program, the employee (the author of this computer program) must know the following:
1. If an employer, within three years from the day when the computer service program was put at his disposal (usually this day is the date of filing the notification of the creation of a computer service program), will not start using this computer program, will not transfer the exclusive right to its use to another person or fails to inform the author about the preservation of the computer program in secret, the exclusive right to the computer work program passes to the author, and the employer can use the computer program for his own needs under conditions of Non-refundable simple (non-exclusive) license during the entire term of the exclusive right.
2. Author's remuneration is not a salary and must be paid in accordance with paragraph 2 of article 1295 of the Civil Code of the Russian Federation. However, the amount of remuneration for the use or alienation of a computer program (as opposed to the use and alienation of an invention), as well as when the employer decides to keep the computer program secretly, is not regulated by the legislation of the Russian Federation and is established by agreement between the employee and the employer, and in the event of disputes by the court.
Since on “Habré” there can be freelancers and companies involved in writing computer programs to order, I will add two general cases on the settlement of legal relations between the customer and the performer.
Settlement of legal relations between the customer and the contractor in the creation of computer programs and databases for the order
In accordance with Art. 1296, if a computer program or database is created under a contract, the subject of which is the creation of this computer program or database (on request), the exclusive right to such a computer program or database belongs to the customer, if the contract between the customer and the contractor (performer) does not provide otherwise. In this case, the contractor (performer) is entitled to use this computer program or database for its own needs on the terms of a gratuitous simple (non-exclusive) license for the entire duration of the exclusive right.
If, under the terms of the contract between the customer and the contractor (performer), the exclusive right belongs to the performer, then the customer has the right to use this computer program or database for his own needs on the terms of a gratuitous simple (non-exclusive) license during the entire term of the exclusive right.
The author of an on-demand computer program or database that does not have an exclusive right to them is entitled to the same remuneration as described above.
')
Settlement of legal relations between the customer and the contractor in the creation of computer programs and databases under the contract
In accordance with Article 1297, if a computer program or database was created during the execution of a contract or research and development contract that did not explicitly provide for the creation of this computer program or database, the exclusive right to such a computer program or database belongs to the contractor, if the contract between the customer and the contractor (performer) does not provide otherwise. In this case, the customer has the right to use this computer program or database for its own needs under the terms of a gratuitous simple (non-exclusive) license for the entire duration of the exclusive right, even if the contractor has transferred the exclusive right to another person, unless otherwise provided by the terms of the contract.
If, under the terms of the contract between the customer and the contractor (performer), the exclusive right belongs to the customer, then the performer is entitled to use this computer program or database for his / her own needs on the terms of a free (non-exclusive) license for the entire duration of the exclusive right.
The author of an on-demand computer program or database that does not have an exclusive right to them is entitled to the same remuneration as described above.
Conclusion
In order not to infringe upon the interests of either the employer or the author when creating a utility program for a computer, the following should be remembered:
All issues related to the creation of the results of intellectual activity and the disposition of exclusive rights to them must be resolved between the employee and the employer in WRITTEN form before the commencement of work. For settling legal relations between an employer and an employee, as a rule, an employment contract, job descriptions and an agreement on the performance results of intellectual activity are used.
Author's remuneration is NOT a salary. An employee who is the author of a computer software service has the right to remuneration for using or disposing of this computer program and when the employer decides to keep this computer program secret in accordance with clause 2 of article 1295.
PS The topic of the article does not fully correspond to the hub topic. Site rules limit the placement of this article in the hubs "Copyright" and "Durax", so please do not consider me illiterate.
Source: https://habr.com/ru/post/288406/
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