5 questions about import substitution and software registry
In early December, we held an event called “The Legal Problems of the Russian IT Market: Relationships with Employees and Customers”. On it, the speakers touched upon the theme of relations with the state as a customer, i.e. government procurement, and in particular the registry of domestic software. The DIT representative only mentioned him and the guests of the event had a lot of questions.
To respect them, we decided to unleash this issue on our own. Moreover, since January 1, 2016, restrictions on the admission of foreign software in the implementation of state and municipal procurement come into force.
According to the new rules, customers are obliged to give preference when purchasing Russian software included in the registry, unless it contains no software with the necessary functional, technical and operational characteristics.
Therefore, for those developers who want to participate in government procurement, it's time to be puzzled by the inclusion of software in this very registry.
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The Ministry of Telecom and Mass Communications is responsible for the formation and maintenance of the register, which follows from the Decree of the Government of the Russian Federation No. 1236 dated November 16, 2015 “On imposing a ban on the admission of software originating from foreign countries for the purposes of procurement to ensure state and municipal needs "
The Office is instructed to ensure proper maintenance of the register as from 1 January 2016.
Under the software for the purpose of inclusion in the registry means a computer program and database. These objects can be included in the registry.
The normative act introduces the concept of “software class” - a group that combines software that has similar functional, technical and / or operational characteristics, and which is determined in accordance with the classifier of programs for electronic computers and databases.
True classifier has yet to be approved.
In addition to the main points related to the software itself, such as the name, number in the registry and the date of entry, the registry will contain information about the copyright holder and (Important!) The grounds on which the right holder has acquired exclusive rights to this software.
Perhaps you know that now such data is not requested and does not appear when registering a computer program with Rospatent.
This means that it is worthwhile to attend to the execution of contracts with your developers (regular employees or freelancers) and the presence in these contracts of instructions on the transfer of exclusive rights.
Unfortunately, today the design and transfer of exclusive rights to software is built with Russian developers and IT companies, to put it mildly, not in the best way. This can be a potential barrier to entry in the registry.
But the registration of a computer program (DB) with Rospatent is not a prerequisite for entering the software into the registry (this information is indicated in the registry only if it is available).
To include the software in the registry set several mandatory conditions:
1. "Russian copyright holder"
This category includes the Russian Federation, its subjects and municipalities.
The Russian NPO is the supreme governing body of which is determined by citizens of the Russian Federation (the Russian Federation, its subjects, municipalities) whose decisions a foreign person cannot determine.
Russian commercial organization in which Russian participants own more than 50% of shares (shares);
citizen of the Russian Federation.
It is worth noting that the individual entrepreneur is not separately listed as a possible copyright holder. But, we assume that the legislator equated the IP to the citizen of the Russian Federation.
2. "the legality of ownership"
indicates the legality of introducing software into civilian circulation and the possibility of free software implementation on the territory of the Russian Federation.
3. "Revenues from the use of software mainly Russian"
It is indicated that the software owner’s incomes received from foreign persons (regardless of the type of contract) for a calendar year should not exceed 30 percent of the holder’s total proceeds.
4. "not a state secret"
Information about the software should not be state secrets
5. "protection"
The software which includes the functions of protecting confidential information must have a certificate of the system of certification of information security tools for information security requirements.
6. "license"
Software consisting of the functions of protecting confidential information must belong to the right holders who have a license to carry out activities for the development and production of means of protecting confidential information.
To include the software in the registry, you must provide the following documents:
Those. documentation containing a description of the functional characteristics of the software and information necessary for installing and operating the software; e) documentation describing the processes that support the life cycle of the software, including troubleshooting identified during the operation of the software, improving the software, as well as information about the staff needed to provide such support.
These documents are reviewed within 10 working days after which the Office decides on the registration or the refusal to register the application.
In case of refusal to eliminate the causes, you can re-submit documents without any restrictions.
After that, the expert council will consider the application within 30 working days.
The general term of consideration of the application is 65 days from the moment of registration of the application.
To respect them, we decided to unleash this issue on our own. Moreover, since January 1, 2016, restrictions on the admission of foreign software in the implementation of state and municipal procurement come into force.
According to the new rules, customers are obliged to give preference when purchasing Russian software included in the registry, unless it contains no software with the necessary functional, technical and operational characteristics.
Therefore, for those developers who want to participate in government procurement, it's time to be puzzled by the inclusion of software in this very registry.
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Who and on what basis keeps the register?
The Ministry of Telecom and Mass Communications is responsible for the formation and maintenance of the register, which follows from the Decree of the Government of the Russian Federation No. 1236 dated November 16, 2015 “On imposing a ban on the admission of software originating from foreign countries for the purposes of procurement to ensure state and municipal needs "
The Office is instructed to ensure proper maintenance of the register as from 1 January 2016.
What can be included in the registry?
Under the software for the purpose of inclusion in the registry means a computer program and database. These objects can be included in the registry.
The normative act introduces the concept of “software class” - a group that combines software that has similar functional, technical and / or operational characteristics, and which is determined in accordance with the classifier of programs for electronic computers and databases.
True classifier has yet to be approved.
Who will keep the registry?
In addition to the main points related to the software itself, such as the name, number in the registry and the date of entry, the registry will contain information about the copyright holder and (Important!) The grounds on which the right holder has acquired exclusive rights to this software.
Perhaps you know that now such data is not requested and does not appear when registering a computer program with Rospatent.
This means that it is worthwhile to attend to the execution of contracts with your developers (regular employees or freelancers) and the presence in these contracts of instructions on the transfer of exclusive rights.
Unfortunately, today the design and transfer of exclusive rights to software is built with Russian developers and IT companies, to put it mildly, not in the best way. This can be a potential barrier to entry in the registry.
But the registration of a computer program (DB) with Rospatent is not a prerequisite for entering the software into the registry (this information is indicated in the registry only if it is available).
What are the conditions for inclusion in the registry?
To include the software in the registry set several mandatory conditions:
1. "Russian copyright holder"
This category includes the Russian Federation, its subjects and municipalities.
The Russian NPO is the supreme governing body of which is determined by citizens of the Russian Federation (the Russian Federation, its subjects, municipalities) whose decisions a foreign person cannot determine.
Russian commercial organization in which Russian participants own more than 50% of shares (shares);
citizen of the Russian Federation.
It is worth noting that the individual entrepreneur is not separately listed as a possible copyright holder. But, we assume that the legislator equated the IP to the citizen of the Russian Federation.
2. "the legality of ownership"
indicates the legality of introducing software into civilian circulation and the possibility of free software implementation on the territory of the Russian Federation.
3. "Revenues from the use of software mainly Russian"
It is indicated that the software owner’s incomes received from foreign persons (regardless of the type of contract) for a calendar year should not exceed 30 percent of the holder’s total proceeds.
4. "not a state secret"
Information about the software should not be state secrets
5. "protection"
The software which includes the functions of protecting confidential information must have a certificate of the system of certification of information security tools for information security requirements.
6. "license"
Software consisting of the functions of protecting confidential information must belong to the right holders who have a license to carry out activities for the development and production of means of protecting confidential information.
What documents are required for the registry?
To include the software in the registry, you must provide the following documents:
- statement;
- copy of software;
- documents confirming the powers of the persons who signed the application;
- Charter of a legal entity;
- Documents confirming the exclusive rights to software;
Those. documentation containing a description of the functional characteristics of the software and information necessary for installing and operating the software; e) documentation describing the processes that support the life cycle of the software, including troubleshooting identified during the operation of the software, improving the software, as well as information about the staff needed to provide such support.
These documents are reviewed within 10 working days after which the Office decides on the registration or the refusal to register the application.
In case of refusal to eliminate the causes, you can re-submit documents without any restrictions.
After that, the expert council will consider the application within 30 working days.
The general term of consideration of the application is 65 days from the moment of registration of the application.
Based on all this, two main conclusions are:
- The term of entry in the registry is quite long - you need to do this in advance and be patient;
- Before filing, be sure to check for exclusive rights to the software and supporting documents.
We hope that we have answered all your questions, if you still have, ask - do not hesitate!
Source: https://habr.com/ru/post/297494/
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