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The amendments to Part Four of the Civil Code of the Russian Federation – a program for an electronic computing machine in the past, a computer program in the future

July 19, 2019

The Ministry of Education and Science of the Russian Federation has proposed to amend the Civil Code of the Russian Federation (C.C.R.F.) regarding the clarification of the terminology used with respect to the programs for electronic computing machines and databases. The bill draft has been published for discussion proposing to introduce the new terms “a computer program” and “a computer.”

In addition to the proposed amendments of the terminology, the bill draft stipulates the provisions aimed at increasing the level of protection of the rights of the authors and the right holders of computer programs and databases.

The Ministry has prepared an explanatory note with a proposal to use the terms “a computer program” and “a computer or other computer device” along with the terms “a program for an electronic computing machine” and “an electronic computing machine or other computer device.” The introduction of these terms into the C.C.R.F. is due to the fact that the terms “a computer” and “a computer program” are already used, however, they are much less common than “a program for an electronic computing machine” enshrined in the legislation. It is proposed by the bill draft to use these terms as the equivalent ones, in order to avoid amending the current regulatory legal acts.

At the same time, it is proposed to consider the programs being a constituent part of technical devices and the mobile applications as the computer programs.

It is also proposed to enshrine in the legislation a more detailed description of the constituent parts of the computer program: a source text, an object code and an audiovisual display.

The bill draft proposed for discussion proposes to enshrine a possibility of the right holder to supplement optionally the materials of the application for the registration of the computer programs with the audiovisual displays and the peculiarities of the functioning of the programs. These provisions reflect the approach that has been formed in the judicial practice, and they make it possible to enshrine this approach, according to which the resolution of the disputes regarding the defence of the rights to the computer programs often requires providing such information.

To ensure greater control over the results of the intellectual activity on the part of the authors and the patent holders, the bill draft proposes to enshrine such concept as “a version of the computer program or the database” and the legal regime of such version.

It is assumed that all new terms will be included in the new edition of Article 1261 of the C.C.R.F. Additionally, it is assumed that the definition of the database, which is given in Article 1260 of the C.C.R.F., will be supplemented. It is also proposed to clarify the description of the objects that are not inventions. The latter is aimed at expanding the possibilities of obtaining the legal protection of the technical solutions, which include the computer programs.

The proposals to amend the norms of the law governing the issuance of licenses for the use of computer programs are also of not less importance. Thus, the bill draft proposes to eliminate the control of the right holder over the modified computer program, namely, the control over the subsequent disposal of the modified program.

It is proposed that the licensee may modify the computer program and dispose subsequently of this subject matter without obtaining an additional consent of the right holder within the framework of the concluded license agreement, provided that such consent is stipulated in the agreement. The parties should reflect in the license agreement the degree and the nature of the changes under which the modified computer program created by the licensee becomes a separate independent subject matter. It is also proposed to envisage the moment in the license agreement, when the modified computer program achieves independence.

The bill draft stipulates a procedure for exercising the exclusive right to the created modified computer program after the termination of the license agreement. As indicated in the explanatory note to the bill draft, the right holder of the independent subject matter shall be vested with a right to use the corresponding subject matter without a consent of the right holder of the source computer program or the database, when using the own program or the database, provided the personal non-property rights of the authors of the correspondent source subject matters are observed.

It follows from the explanatory note that the bill draft will allow improving the legal regime for establishing the rules for the turnover of the rights to the programs for electronic computing machines and the databases in accordance with the modern conditions of the digital economy. The result of the proposed amendments will be dismantling the legislative restrictions and eliminating the legal uncertainty regarding the rules for the turnover of the rights to the programs for electronic computing machines and the databases.

Analyzing the proposed innovations, we believe that the adoption of the bill draft will make it possible to achieve uniformity of the terminology, including the one used in a number of the leading countries, and it will also make the regulation regarding the new modified computer programs created within the framework of the use of the subject matter under a license agreement more transparent and understandable.

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Author of article

Aleksandra Pelikh

Aleksandra Pelikh

Head of Department / Senior Lawyer