What you need to know someone who perepilivaet other people's programs
Continuing the topic of software that we have already touched on in previous articles ( about authorship on software and about the software registry ) I would like to talk about the processing of software products and the main issues arising from this.
It is clear that software is not something unshakable and eternal, created once and for all. And any computer program is subject to constant doping and sawing.
We present a list of the main issues that should arise from those who are engaged in processing software.
Recycling - the creation of a new (derivative) product based on an existing one.
Modification (a special case of processing) - any changes to them, including their translation from one programming language to another.
Adaptation - making changes that are made solely for the purpose of the functioning of the program.
No, not the one whose hands grow from the shoulders. Only its holder or a person authorized by the holder for such processing (obtained appropriate rights). It is worth paying attention to the fact that processing software without the permission of the copyright holder is a violation of exclusive rights.
In court practice it is expressly stated that changes are allowed with the consent of the author (copyright holder), which must be expressly stated. In the absence of evidence that consent has been expressly expressed, it is not considered obtained.
So, you have obtained the right to use the software under a license agreement, now check whether you can recycle it.
The right to process a work as one of the ways to use the result of intellectual activity may be transferred among other powers within the framework of the transfer of rights under an agreement on the alienation of an exclusive right in full (article 1234 of the Civil Code of the Russian Federation) or granted under a license agreement (article 1235 of the Civil Code of the Russian Federation), and can also proceed on the grounds established by law without concluding an agreement with the right holder (Article 1241 of the Civil Code of the Russian Federation).
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Therefore, if you received the rights to the software under a license (sublicense) contract, be sure to check whether you have the rights to process (modify) the product.
So in one of the cases the court indicated
Accordingly, the use of the software by methods not expressly provided for in the agreement is a violation of exclusive rights.
We have repeatedly said that the computer program is protected as a literary work - as a specific set of characters. But any programmer can rewrite the code while retaining the very idea of the object of intellectual property.
For example, an online calculator was developed, and after a while a similar product appears on another site.
The author of the original object files a lawsuit demanding to recognize the violation of his rights, but the court, after having examined the claims, refuses. And motivates this as follows.
True in the cassation instance the decision was canceled.
Adaptation does not create a new work and does not imply significant changes. Therefore, the law allows for adaptation without the permission of the copyright holder and without paying him any additional remuneration.
In this way,
On this we have, for now, everything. Merry false Friday!
It is clear that software is not something unshakable and eternal, created once and for all. And any computer program is subject to constant doping and sawing.
We present a list of the main issues that should arise from those who are engaged in processing software.
What does recycling mean?
Recycling - the creation of a new (derivative) product based on an existing one.
Modification (a special case of processing) - any changes to them, including their translation from one programming language to another.
Adaptation - making changes that are made solely for the purpose of the functioning of the program.
As judicial practice indicates, the processing (modification) of a computer program or database refers to any changes, including the translation of such a program or database from one language to another, with the exception of adaptation, that is, changes made solely for the purpose of functioning of a computer program or database on specific technical means of the user or under control of specific user programs (see Decision on Case No. 14-476 / 2015 of 05.08.2015. AC of the Voronezh region).
OK. Who can recycle the software?
No, not the one whose hands grow from the shoulders. Only its holder or a person authorized by the holder for such processing (obtained appropriate rights). It is worth paying attention to the fact that processing software without the permission of the copyright holder is a violation of exclusive rights.
In court practice it is expressly stated that changes are allowed with the consent of the author (copyright holder), which must be expressly stated. In the absence of evidence that consent has been expressly expressed, it is not considered obtained.
Super. I have rights to this software. What's next?
So, you have obtained the right to use the software under a license agreement, now check whether you can recycle it.
The right to process a work as one of the ways to use the result of intellectual activity may be transferred among other powers within the framework of the transfer of rights under an agreement on the alienation of an exclusive right in full (article 1234 of the Civil Code of the Russian Federation) or granted under a license agreement (article 1235 of the Civil Code of the Russian Federation), and can also proceed on the grounds established by law without concluding an agreement with the right holder (Article 1241 of the Civil Code of the Russian Federation).
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Therefore, if you received the rights to the software under a license (sublicense) contract, be sure to check whether you have the rights to process (modify) the product.
So in one of the cases the court indicated
“... clause 1.4 of the contract provides that any special changes, translations or processing of the source code of the software product do not give the Licensee the right to sell, license, distribute in any form of the source code or part of it. The creation of other products based on this software product or the use of the source code is prohibited ”(Resolution of September 11, 2015 in case No. 38-2216 / 2014).
Accordingly, the use of the software by methods not expressly provided for in the agreement is a violation of exclusive rights.
And if you really want?
We have repeatedly said that the computer program is protected as a literary work - as a specific set of characters. But any programmer can rewrite the code while retaining the very idea of the object of intellectual property.
For example, an online calculator was developed, and after a while a similar product appears on another site.
The author of the original object files a lawsuit demanding to recognize the violation of his rights, but the court, after having examined the claims, refuses. And motivates this as follows.
"... the texts are similar in the sense that they have:
a) the same purpose;
b) identical active script (computing unit);
c) identical markup codes on the HTML site, where it is required to ensure interaction with the active script;
d) various markup codes in the HTML language, where it is connected with the task of constants (prices and work) and the definition of the appearance of the application (color scheme, cell sizes of tables, etc.).
These texts were not developed independently, but one of them was obtained by processing the other. There is reason to assume that sample No. 2 was obtained by processing sample No. 1, and not vice versa.
These texts do not contain any non-standard, copyright decisions that would differ them from other developments. All operations were performed in a standard way, and all the techniques used were repeatedly described in publicly available web-programming textbooks (case No. A40-164273 / 2012).
True in the cassation instance the decision was canceled.
And if only adapt?
Adaptation does not create a new work and does not imply significant changes. Therefore, the law allows for adaptation without the permission of the copyright holder and without paying him any additional remuneration.
In this way,
- Before making changes to the software (of which you are not the copyright holder), look at whether this refers to recycling or adaptation.
- If you received the rights to the software under a license agreement, be sure to check that you have rights for processing.
- If you are the legal owner of the software, you can adapt for free and without permission of the copyright holder.
On this we have, for now, everything. Merry false Friday!
Source: https://habr.com/ru/post/298790/
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