Currently, according to the legislation of the Russian Federation, the rights to software are protected as a subject matter of the copyright and they are equated to literary works. In accordance with Article 1225 of the Civil Code of the Russian Federation, the software shall be a subject matter of intellectual property, respectively, the defence of the intellectual rights shall be extended to all software developments by default (at the same time, they are not subject to a mandatory registration). But it is possible to obtain an additional defence through the registration of the software with Rospatent and the Ministry of Digital Development, Communications and Mass Media of the Russian Federation (the Ministry of Communications and Mass Media).
In order to understand the difference between two types of the registration of the program for the electronic computing machine, it is necessary to understand what the registration in each of these departments is and what its peculiarities are.
The registration of the program for the electronic computing machine with ROSPATENT provides the following advantages:
– obtaining a certificate of the state-approved format, what is considered as a confirmation of the exclusive right to computer programs, and as a consequences, it is an important circumstance, when transferring the rights to the software product to potential licensees and buyers;
– the registered software product data are entered in the state register, what gives a certain legal defence of the interests of the right holders and reduces the risk of conflict situations arising from gaining various kinds of profits from the use of the program;
– the certificate is one of the main documents, when the intellectual rights are defended in the court;
– the confirmation of the registration becomes the most important document in countering a computer “piracy;”
– the availability of the document confirming the intellectual rights serves as a basis of the relationships with investors and potential partners;
– the certificate on the registration is a basis for entering the software product in the company's books and contributing it into a share capital as an intangible asset;
– the registration provides the possibilities of a safer participation in various exhibitions and competitions of an international character;
– the document on the registration confirms the availability of the exclusive right to the program, while resolving the issue on attracting additional investments in the form of loans.
At the same time, the registration of the program for the electronic computing machine with ROSPATENT takes place rather quickly, within two months and according to the formal features. To register, it is necessary to submit a source program code or its part and the brief information on the field of the application, the purpose and the functionality of the software product.
Now, let us consider the essence of the registration of the program for the electronic computing machine with the Ministry of Communications and Mass Media.
Since January 1, 2016, the law has taken effect in the Russian Federation that stipulates the creation of a register of the Russian software and defines the criteria for determining the origin of the domestic software. The Resolution of the Government establishes a prohibition for the admission of the software originating from the foreign countries, while carrying out the procurements for the public and municipal needs. The unified register was created in order to expand the use of the Russian software and to confirm its Russian origin, as well as to provide the state support to the domestic right holders of the software. From now on, the Government may restrict the admission of the software for the participation in the public procurements. This means that the public customer is obliged first of all to search for the software products he needs in the register of the Russian software of the Ministry of Communications and Mass Media.
The registration of the program for the electronic computing machine with the Ministry of Communications and Mass Media is similar to the registration with ROSPATENT. However, there are differences, too. To register, it is necessary to meet certain criteria; in particular, the following requirements are established for the inclusion in the register:
1) the right holder of the Russian software may be a citizen of the Russian Federation or a commercial organization. At the same time, a share of the participation of the Russian citizens, organizations, the subjects of the Russian Federation, the Russian Federation in the commercial organization should be more than 50%.
2) The software must be introduced into the civil circulation on the territory of the Russian Federation.
3) The information on the software product can not constitute a state secret.
4) The total amount of the payments for a calendar year under the license agreements in relation to the foreign legal entities and the individuals is less than 30 percent of the revenue of the right holder of the software from its implementation, including granting the rights to the use.
If the above criteria are met, then it is possible to carry out the registration. To do this, it is necessary to fill in an online form and to enter the information on the software product. First of all, one will have to indicate a link to the website of the right holder on the Internet, where the documentation containing the description of the functional characteristics of the software, as well as the information, which is necessary for the operation and improvement of the program, are posted. In other words, it is necessary to give a valid link to the page with the software user information. Among other things, it is necessary to provide access to a copy of the software.
It is also necessary to indicate in the online form a basis of the occurrence of the applicant’s exclusive right to the program (for example, his own development, a work made for hire, an acquisition of the exclusive right). This field can be filled in an arbitrary form, but the main thing is to provide the information that will be necessary and sufficient to determine the fact, whether the applicant really has the rights to this software. One of the main documents confirming the availability of the exclusive rights to the software is the certificate on the registration of the program for the electronic computing machine with ROSPATENT, since it has legal force and the presumption of the accuracy of the information.
Based on the above, it can be concluded that the registration of the program for the electronic computing machine with ROSPATENT and the Ministry of Communications and Mass Media pursues quite different goals. The registration of the software with ROSPATENT is one of the options for an additional confirmation of the availability of the exclusive rights to this software product. The registration of the software with the Ministry of Communications and Mass Media is necessary to obtain a possibility of the participation in the public procurements and it is aimed at resolving the problems related to import substitution.