Currently, software products are an important asset of many companies, and therefore it is necessary to think about their legal protection in a timely manner, since it ensures not only compliance with the rights and conditions of their use, but also allows you to prevent their copying and regulate legal disputes in the event of a conflict of interest.
It is advisable to think about software protection even before it is released onto the market. The most common type of protection is copyright, which provides:
- exclusive rights to the creators of original works, including software;
- the right to prohibit its unauthorized reproduction, distribution and use without the permission of the copyright holder;
- the ability to strengthen legal positions in the event of litigation and violations, protect the reputation of the company and product, and also provide software developers with financial compensation for their work.
According to Article 1261 of the Civil Code of the Russian Federation, copyright in software arises immediately after its creation without additional registration. However, testing for novelty or uniqueness is not officially carried out. In accordance with Article 1259 of the Civil Code of the Russian Federation, copyrights for all types of computer programs (including operating systems and software systems) can be expressed in any language and in any form, including source text and object code, and are protected in the same way as copyrights for works of literature. That is, protection automatically extends not only to preparatory materials and objects created during the development of new software, but also to its audiovisual content (functional interfaces, menus, program design, etc.).
It should be noted that computer programs and databases, at the request of the copyright holder, can be registered and an official document (registration certificate) can be obtained, which, in the event of violations by unscrupulous competitors, will significantly strengthen the position of a bona fide software owner in court and save time in collecting evidence of its authorship (art. 1262 Civil Code of the Russian Federation).
To register software, a package of documents is submitted to Rospatent, including an application, deposited materials, an abstract, as well as confirmation of payment of the state duty. As a rule, documents are sent by mail or in person. The application is usually considered within two months and after a positive decision is made, the copyright holder is issued a certificate stating that the software is included in the Register of Computer Programs (federal register), and information about the registered program is published in the official bulletin of Rospatent.
Regarding the international protection of copyright in software, there are three international conventions that have been signed and ratified by the Russian Federation: the Berne Convention for the Protection of Literary and Artistic Works, the WIPO Copyright Treaty and the TRIPS Agreement.
The Berne Convention for the Protection of Literary and Artistic Works was concluded in 1886 in Bern (Switzerland). It establishes the basic principles of copyright protection for literary and artistic works, including software. Russia joined the Berne Convention on the basis of Decree of the Government of the Russian Federation No. 1224 of November 3, 1994.
The International Copyright Agreement, approved by WIPO (World Intellectual Property Organization) on December 20, 1996 in Geneva (Switzerland), extends legal protection to computer programs and provides for the duration of copyright, their limitations and exceptions, etc. The purpose of the Agreement was to bring international rules on intellectual property in accordance with the requirements of the information technology era. The Russian Federation acceded to the Treaty on the basis of Order of the Government of the Russian Federation dated July 21, 2008 N 1052-r.
The Agreement on Trade-Related Aspects of Intellectual Property Rights TRIPS, as one of the current international legal treaties, was adopted in 1994. In accordance with the TRIPS Agreement, protection for computer programs was extended at the international level for the first time. The Agreement established standards for their regulation, enshrined the principle of protecting software as literary works and the obligation of participating countries to comply with all important provisions of the Berne Convention (except for provisions on moral rights, which can be explained by the commercial nature of the Agreement). Russia assumed obligations to implement TRIPS provisions on August 22, 2012.
If there are several copyright holders of the software, they can enter into an agreement on rights management on a collective basis with special organizations, for example, RAO (Russian Authors' Society). Moreover, they will all have equal rights to the product, unless otherwise provided by the copyright agreement.
Rights to software may also belong to heirs (in the event of the death of the author), legal entities or individual entrepreneurs (IP). For example, if the author of the software was in an employment relationship with a company or individual entrepreneur, then they will have property rights on a legal basis. A concluded transaction in accordance with the procedure established by law between the author of the software and third parties also serves as a reason for the transfer of property rights.
In conclusion, although software copyright holders have leverage against infringers when they identify infringements (the right to file civil lawsuits against individuals or organizations engaged in software piracy, obtain compensation for damages caused, and prohibit further piracy), combating piracy takes time and considerable effort, and therefore, to avoid such situations, software developers should cooperate with legal services, patent attorneys and cybersecurity experts in the early stages of software development.
