The truth about your software rights
In relations with contractors, in order to confirm the exclusive right to computer programs or databases, it is usually sufficient to submit a certificate of state registration issued by Rospatent.
However, this question has a “second bottom”. This certificate confirms the fact of applying to Rospatent with an application for registration of a software product in the name of a specific person. Rospatent does not check the ownership of such a person of an exclusive right, but only makes an entry in the state register of programs and databases on the basis of the information provided. The applicant is responsible for the accuracy of such information.
Therefore, software registration at Rospatent does not insure 100%. Obtaining a certificate is only the final stage of registration of rights. What steps should precede registration, see under the cut.
A legally exclusive software right is not based on the state registration certificate and certificate issued, such as the right to a trademark or invention, which are protected solely by registration.
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In accordance with paragraph 4 of article 1259 of the Civil Code of the Russian Federation for the emergence, exercise and protection of copyright does not require registration of the work or compliance with any other formalities. Since the software is protected as a work, the author has enough of the fact of his creation in any objective form as a result of his creative efforts in order to arise in relation to his exclusive right.
To confirm the existence of an exclusive right to software products from a person other than the author, it is required to have a whole package of documents, the composition of which may vary depending on the grounds for alienating the exclusive right from the author in favor of the new copyright holder.
If the program was created by the author independently and in his own interests, then the transfer of the exclusive right to it to a third party is possible on the basis of the contract of alienation, donation, or a row of inheritance.
When the program was written to order, it is necessary to get acquainted with the terms of the contract of author's order . It should be clearly stated that the exclusive right to the software created for the order is fully transferred to the customer. Otherwise, it is retained by the author.
A no less common option for the emergence of an exclusive right to software products from legal entities is to create it within the framework of an employment relationship with a developer. In this case, the exclusive right of the employer is confirmed by the following minimum set of documents:
1) employment contract with the author ;
2) the job description of the author, including the responsibilities for creating software;
3) the source code of the computer program;
4) preparatory materials (scheme block, architecture, technical specifications, calculations, etc.)
In addition, you may need:
1) an agreement with the author on the distribution of rights to an official work, determining the procedure for transferring rights, determining the amount and payment of remuneration;
2) the provision on the use of corporate electronic systems for the formulation of official tasks;
3) orders to start work on the creation of specific software;
4) confirmation of the statement of the service task to a specific programmer for the creation of a program;
5) a payment document (expendable cash order, payment order) confirming the payment of author's remuneration to the author.
Assess your chances of losing software rights.
However, this question has a “second bottom”. This certificate confirms the fact of applying to Rospatent with an application for registration of a software product in the name of a specific person. Rospatent does not check the ownership of such a person of an exclusive right, but only makes an entry in the state register of programs and databases on the basis of the information provided. The applicant is responsible for the accuracy of such information.
Therefore, software registration at Rospatent does not insure 100%. Obtaining a certificate is only the final stage of registration of rights. What steps should precede registration, see under the cut.
A legally exclusive software right is not based on the state registration certificate and certificate issued, such as the right to a trademark or invention, which are protected solely by registration.
')
In accordance with paragraph 4 of article 1259 of the Civil Code of the Russian Federation for the emergence, exercise and protection of copyright does not require registration of the work or compliance with any other formalities. Since the software is protected as a work, the author has enough of the fact of his creation in any objective form as a result of his creative efforts in order to arise in relation to his exclusive right.
To confirm the existence of an exclusive right to software products from a person other than the author, it is required to have a whole package of documents, the composition of which may vary depending on the grounds for alienating the exclusive right from the author in favor of the new copyright holder.
If the program was created by the author independently and in his own interests, then the transfer of the exclusive right to it to a third party is possible on the basis of the contract of alienation, donation, or a row of inheritance.
When the program was written to order, it is necessary to get acquainted with the terms of the contract of author's order . It should be clearly stated that the exclusive right to the software created for the order is fully transferred to the customer. Otherwise, it is retained by the author.
A no less common option for the emergence of an exclusive right to software products from legal entities is to create it within the framework of an employment relationship with a developer. In this case, the exclusive right of the employer is confirmed by the following minimum set of documents:
1) employment contract with the author ;
2) the job description of the author, including the responsibilities for creating software;
3) the source code of the computer program;
4) preparatory materials (scheme block, architecture, technical specifications, calculations, etc.)
In addition, you may need:
1) an agreement with the author on the distribution of rights to an official work, determining the procedure for transferring rights, determining the amount and payment of remuneration;
2) the provision on the use of corporate electronic systems for the formulation of official tasks;
3) orders to start work on the creation of specific software;
4) confirmation of the statement of the service task to a specific programmer for the creation of a program;
5) a payment document (expendable cash order, payment order) confirming the payment of author's remuneration to the author.
Assess your chances of losing software rights.
Source: https://habr.com/ru/post/289744/
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