In the previous article for software protection, copyright was considered as the most common protection option. An effective way to protect authorship, in addition to program registration, is deposition, when the software is entered into specialized electronic registries (Copytrust is one of the convenient registries) indicating the author and time of deposition. The author is issued documents confirming the deposit, which can effectively help in case of violation of the rights of developers in the event of litigation.
Software can also be protected patent law, but only if the program is part of an innovative development. , So, according to paragraph 5. Art. 1350 of the Civil Code of the Russian Federation, computer programs are excluded from the patenting list, but a software developer can obtain a patent that provides its protection worldwide if the program is created as an integral part of a hardware and software complex.
In this case, the hardware-software complex may be patentable if
- it has novelty (the program must not be published) and a certain level of ingenuity (the program must make a contribution to the existing state of the art);
- its technology, concept and system are industrially applicable and solve a problem that previously could not be solved by means available to science and technology.
The patent application is submitted to Rospatent among all the necessary documents, which take into account all the requirements necessary to successfully obtain a patent. Just as in the case of patenting other objects of intellectual property, a formal examination and substantive examination are carried out, and after a positive decision is made, a patent is issued for the software and hardware complex, of which the software is a part.
Another way to protect software is to use trade secret mode, which helps prevent information leakage while working on the program. To do this, all persons involved in its creation sign a non-disclosure agreement. What information is covered by the trade secret regime is decided by the company where the software product was developed. The agreement also specifies the type of liability and sanctions that may be applied to violators.
When drawing up an agreement, it is necessary to indicate that:
- a trade secret can only be information that has commercial value for the company;
- persons involved in software development must be warned in writing that they are working with trade secrets and what is a trade secret, as well as for how many years after dismissal employees have no right to disseminate information about it;
- the agreement must be drawn up on behalf of the company that owns the trade secret.
A website design can be protected as an industrial design. If we consider an Internet site as a program, then each of its elements will be protected independently - the design separately, the content (text, visual images, etc.) also separately.
Thus, the software can be protected: under copyright without state registration; within the framework of patent law, it is possible to protect software if it is part of a software and hardware complex; The website design can be protected as an industrial design; intermediate work on the program and it itself can be registered as a trade secret in order to reduce the risk of violation by third parties.
A separate issue concerns official works. Typically, programs are developed using resources, technologies, materials, facilities, etc., provided by the company to the developer. For this reason, disputes may arise between the employer and the author of the program about the authorship of the software and how to use it. However, the right to dispose of the result of work created within the company by its employee - a software developer - belongs to the employing organization, unless there are other agreements between them.
It is important not to forget that the author’s moral rights are inalienable, and property (exclusive) rights can be transferred under an agreement to third parties, but in this case the software developer will be called the author.
The employer organization is obliged to use the software or enter into transactions in relation to the software for three years, and also keep information about the software secret from third parties, which the company's management must inform the author about.
If these conditions are not met within three years, then the exclusive right to the program passes to the author. But, if the employer accepted and implemented at least one of these conditions within the specified period, the author has the right to remuneration, the terms of which are specified in a separate agreement.
In conclusion, I would like to add that if a violation is detected on the part of unscrupulous competitors, the following measures may be applied to them:
- civil law (the injured party has the right through the court to demand from the offender material compensation for losses caused, including lost profits and moral damage);
- administrative (in accordance with Article 7.12 of the Code of Administrative Offenses of the Russian Federation, the violator must pay fines or counterfeit goods may be confiscated from him);
- criminal (according to Article 146 of the Criminal Code of the Russian Federation, fines, corrective labor and even arrest may be applied to violators).
Thus, when developing software, it is necessary to consider all possible options for protecting it, the choice of which is best left to lawyers and patent attorneys.
