Is the author of the program being sought, or is the programmer always = the author?
Warning :
The issues of defining the copyright holder are inflamed most, therefore, reading the proposed article is dangerous for CSY and the immutability of the picture of the world. The article has more questions than answers, and I propose to take it more as a reason for discussion, and not the last truth. What is the provoking question ...
At first glance, the answer seems obvious: of course, the author will be the programmer who wrote the code.
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By law, the author becomes the “primary” copyright holder of the program (Art. 1228 of the Civil Code of the Russian Federation) and, therefore, for the alienation of rights or the granting of a license may require remuneration.
Let us ask a seditious question: is it really so? At least, is it always like this?
Let's dig deeper and see.
By law, the author is a citizen whose creative work created the work. What is creative work? There is no exact answer in the law. Let us turn to the doctrine and judicial practice. From the decisions of courts and articles of scientists it can be concluded that the creation of something new and original is recognized as creative activity.
What could be new and original in the program?
Here it is necessary to understand what the program consists of. At the same time, we should focus not on the essential understanding of a specialist, but on the wording of a law that gives legal protection to such an object of intellectual property as a computer program.
From the point of view of the law (Art. 1261 of the Civil Code of the Russian Federation), program 4 has “implementation forms”:
- source text;
- object code;
- preparatory materials obtained during the development of the program;
- audiovisual displays generated by the program.
The question of authorship for each form should be investigated.
Consider the possible options. If the programmer is always the author of the code, the customer may also be the author of the preparatory materials and audiovisual displays.
In this case, it turns out that the programmer is not the author, but only a co-author or even a stenographer (only an intellectual, that is, a person who provided technical assistance to the author on the wording of paragraph 2 of item 1228 of the Civil Code of the Russian Federation). Nobody denies that the author of the novel “War and Peace” - L.N. Tolstoy, not his long-suffering spouse, rewrote the dictation text 9 times.
Consequently, the question of authorship of the program is not so simple. The author of the program can be not only a “programmer-stenographer”, but also the task designer.
Just how do we define it?
I think the main evidence will be the technical task. According to the scope of the technical task that the Customer prepares, and its relationship with the finished product, we can objectively establish: what creative contribution to the creation of the program the Customer made and to what extent, and how much creativity the programmer contributed.
In order not to step on a rake, agree on the shore ...
In this situation, it is best to settle the issue of authorship in the contract of authoring an order to create a program. If the parties to the contract immediately fix the conditions on specific creative contributions and distribution of rights, this will also be evidence of the occurrence of the rights of the parties and even their distribution.
Thus, in any contract, the question of authorship should be put in a separate paragraph and indicate:
- what materials the customer sends to create a program;
- who is the author of these materials and how authorship will be taken into account in the finished product;
- how and to what extent the customer can influence the creation of the program, what his instructions should be executed, how they affect the issues of authorship;
- what distribution of shares in the right to the finished product will be determined by the results of the execution of the contract.
ZY Correct discussion of the issue is welcome in the comments. Perhaps the collective brain can work out the criteria for authorship for the program.
(c) Kirill Mityagin
The issues of defining the copyright holder are inflamed most, therefore, reading the proposed article is dangerous for CSY and the immutability of the picture of the world. The article has more questions than answers, and I propose to take it more as a reason for discussion, and not the last truth. What is the provoking question ...
At first glance, the answer seems obvious: of course, the author will be the programmer who wrote the code.
')
By law, the author becomes the “primary” copyright holder of the program (Art. 1228 of the Civil Code of the Russian Federation) and, therefore, for the alienation of rights or the granting of a license may require remuneration.
Let us ask a seditious question: is it really so? At least, is it always like this?
Let's dig deeper and see.
By law, the author is a citizen whose creative work created the work. What is creative work? There is no exact answer in the law. Let us turn to the doctrine and judicial practice. From the decisions of courts and articles of scientists it can be concluded that the creation of something new and original is recognized as creative activity.
What could be new and original in the program?
Here it is necessary to understand what the program consists of. At the same time, we should focus not on the essential understanding of a specialist, but on the wording of a law that gives legal protection to such an object of intellectual property as a computer program.
From the point of view of the law (Art. 1261 of the Civil Code of the Russian Federation), program 4 has “implementation forms”:
- source text;
- object code;
- preparatory materials obtained during the development of the program;
- audiovisual displays generated by the program.
The question of authorship for each form should be investigated.
Consider the possible options. If the programmer is always the author of the code, the customer may also be the author of the preparatory materials and audiovisual displays.
In this case, it turns out that the programmer is not the author, but only a co-author or even a stenographer (only an intellectual, that is, a person who provided technical assistance to the author on the wording of paragraph 2 of item 1228 of the Civil Code of the Russian Federation). Nobody denies that the author of the novel “War and Peace” - L.N. Tolstoy, not his long-suffering spouse, rewrote the dictation text 9 times.
Consequently, the question of authorship of the program is not so simple. The author of the program can be not only a “programmer-stenographer”, but also the task designer.
Just how do we define it?
I think the main evidence will be the technical task. According to the scope of the technical task that the Customer prepares, and its relationship with the finished product, we can objectively establish: what creative contribution to the creation of the program the Customer made and to what extent, and how much creativity the programmer contributed.
In order not to step on a rake, agree on the shore ...
In this situation, it is best to settle the issue of authorship in the contract of authoring an order to create a program. If the parties to the contract immediately fix the conditions on specific creative contributions and distribution of rights, this will also be evidence of the occurrence of the rights of the parties and even their distribution.
Thus, in any contract, the question of authorship should be put in a separate paragraph and indicate:
- what materials the customer sends to create a program;
- who is the author of these materials and how authorship will be taken into account in the finished product;
- how and to what extent the customer can influence the creation of the program, what his instructions should be executed, how they affect the issues of authorship;
- what distribution of shares in the right to the finished product will be determined by the results of the execution of the contract.
ZY Correct discussion of the issue is welcome in the comments. Perhaps the collective brain can work out the criteria for authorship for the program.
(c) Kirill Mityagin
Source: https://habr.com/ru/post/296202/
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