How to prove your authorship on software

At the beginning of the year, we published the Case of the Year According to Lawyers , which was read by many. But we did not say the main thing: what to do if the customer wants to leave you without his pants?

He who is warned is armed. And do not think that this will not happen to you. Is that you are standing on the other side of the barricades and throw their developers right and left. Then flip through this article in your feed. Now we will teach software developers how to prepare for the scoundrels of different breeds and sizes.

Punch cards and computers

First you need to understand what the law thinks about it. Still, his language is somewhat different from simple human. In addition, many definitions in His dictionary appeared decades ago and have not changed much since then.
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Thus, according to the Civil Code, any software bears the proud name of the Computer Program. In order to be recognized as such, it must meet a number of signs:

• objective form;
• a set of data and commands intended for the operation of computers and other computer devices;
• to produce a certain result, including the preparatory materials obtained during the development of a computer program, and the audiovisual displays generated by it.

Humble creator

With the concept of authorship, everything is simpler; over time, it has not changed its meaning. Whether we are talking about exclusive designer pots or the Hadron Collider, there is no difference in terms of copyright. The creator is always the original owner of all rights to the product, in our case the software.

For the emergence of copyright no additional action (deposit, registration) is not required. Registration of the program at Rospatent (we will talk about this later) is optional.
But this is from the point of view of the law. But in fact, there are cases when it is difficult to prove your authorship.

Protect yourself

For example, you wrote a program at home. A year later, it turned out that someone had assigned it and registered with Rospatent for itself. What to do?
To form an evidence base (just in case), you can do the following:

• When releasing the program on the media, indicate the year of release and the name of the author. The law establishes a presumption that, in the absence of evidence to the contrary, the author of a work is considered to be the person indicated as the author on the original or on the copy of the work.
• Label territory source code. This will be considered by the court as evidence (along with other documents / circumstances).

“... According to the opinion of Professor Giensan Kim Byung-soo National University, a study of 138 files revealed that only 24 contain references to the plaintiff’s rights, 21 of them contain an indication that they were created by individuals who, according to Plaintiff, are his employees; 5 files contain information about the rights of Daewoo Industries, Ltd.; 6 files contain information about the fact that they were created by programmers of Daewoo Industries, Ltd.; 43 files contain references to their creation by other persons - members of the board of the University of California, “Real-Time Innovations”, I. Boldyrev, V. Smolko, V. Varavva, V. Kireychikov; 59 files do not contain information about who they were created or about the availability of copyright ”(for more details see Decision on Case No. 40-56928 / 2004 of July 2, 2014. CIP).

• Send yourself a registered letter with an enclosed disc with the final version of the program.
• Deposition. Do not confuse with the publication in the public domain. We mean by this the fixation of rights to software, an alternative to registration with Rospatent. This procedure can be passed through a notary or in a specialized company.

If it comes to the same court, then as the evidence you can use your source code and working materials, so keep them until the second coming.

“... In the new review, the court of first instance is invited to take into account the foregoing, to determine the circle of persons whose rights and interests protected by law may be affected when a decision is made on the merits of this dispute; invite the parties to submit initial versions of computer programs, namely: AK Credit, computer programs Automation of cash settlements of credit cooperatives of citizens and the software product “Software complex for automation of cash, accounting and tax calculations of citizen credit cooperatives”, and also discuss the issue of appointing in the case of a forensic examination to resolve the issue of the existence of similarities between the specified computer programs ”(Decision in case No. 27-6440 / 2013 dated January 27, 2015. CIP).

Service tasks

Not everyone is happy to work directly from the couch, and if from the couch, it’s still “on uncle”. Therefore, we also take into account such a turn.
So, if the program is created within the framework of labor or civil law relations, then as additional evidence you can use:

• contract;
• technical / official task;
• certificate of services rendered (reception and transmission).

We hope, it is clear that such documents should be available to you anyway. They must be printed out, signed in duplicate by both parties and be in the locker. “It is impossible to give all instructions in writing,” you will say. Maybe. If you do not have enough time, hire a specially trained person. Remember that to solve problems in court will be more expensive and more difficult.
"And if the second party in another city does not want to sign anything?" If the game is worth the candle, then allow yourself a small weakness and sign the documents in a personal meeting with the customer and the developers. Moreover, if they stubbornly refuse to sign documents, this is a very disturbing bell. It is worth thinking about the honesty of the other side already at this stage.

Important! In all documents, specify the identifying features of the software in as much detail as possible - otherwise, in court you will encounter the fact that it is simply impossible to understand which program you created.

Author group

If there are several authors, they are recognized as co-authors of the work and, as a general rule, they use the program together. However, remember that to recognize the co-author, you must make a creative contribution to the creation of the work.

“... satisfying the counter claims SP XXX on recognizing her co-author of the photo“ In Search of Treasures ”and denying protection of copyright Pimenova L. L. the model and details were also chosen by her, that is, thanks to the intellectual and intellectual activity of M. Fedoseyeva, her idea was embodied in the plot of the photograph, the image, the specific image plan ”(Determination in case No. 33-1581 of July 26, 2010. Republic of Buryatia (Republic of Bu Ratia)).

Cases of recognizing co-authorship in software are often considered. And in one of these cases, the court paid attention to the need for a creative contribution to the creation of the product. At the same time, the person who performed only the technical functions of control is not a co-author.

“... A link to the order of the director of“ *** ”No. *** of August 14, 2006 on the correction of deficiencies and flaws in the program cannot be taken into account, since this order of authorship by Z *** A. A. regarding the program for Computer does not confirm. On the contrary, it appears from the content of the said order that the program was developed by the head of the E *** Development Department, who was ordered by order to eliminate the deficiencies identified in the program. *** A.A. A. as co-author in the order is not specified, it was only responsible for the execution of this order. The fact that Z *** A. A. supervised the execution of the order to eliminate E *** I. P. of the program’s shortcomings does not give grounds for his recognition as a co-author of the program ”(Decision No. 33 - *** - 2008 dated 10.28.2008. Ulyanovsk Regional Court.

Therefore, if your software is created by several employees (freelancers), it is worth concluding an agreement with each of them for specific work, and not be tempted to reduce the amount of paper work and make an agreement with only one, “main” developer.

Registration with Rospatent

Register software or not - the desire of the author / copyright holder. This procedure is not mandatory.
At the same time, it is necessary to understand that software is registered as a literary work - this means that registration does not provide protection against possible modifications / processing - this is not patenting. This is only the fixation of specific software and confirmation (no more) of authorship / ownership.

It makes sense to register the software in the case of:

• when you transfer it under a license agreement (in this case, communication with the tax is easier - they understand what you transfer the rights to);
• if you are attracting an investor (they like additional supporting papers).

The registration procedure is simple and does not require proof of authorship. In difference, by the way, from the software registry ( we wrote about it recently ). It takes up to 1.5 months and requires, in addition to the application and fees, the provision of a source code fragment.
Please note that registration can be challenged by the author of the work (if you indicated yourself as an author without having the right to do so).

Long-awaited conclusions:

1. Despite the automatic occurrence of software copyright, it is worth to lay straws and stock up on evidence.
2. When deciding whether to register a program with Rospatent, consider whether you need it. Registration does not protect against copying by competitors - this is not patenting.
3. When registering software with Rospatent, do not indicate yourself as the author (if you are not) - do not think that the absence of the need to provide supporting documents will save you from the court.
4. If there are several authors, they are co-authors. So make out a relationship with each of them. Do not be lazy!