When creating a solution, everyone reasonably raises the question: “What rights do I have, and what can I do with them?” In the existing world, from a legal point of view, it is difficult to understand what rights the author of the decision has. All this is also complicated if the decision itself is ambiguous and difficult to understand.
Let us consider what rights the author of a computer program and database has in the modern world.
To understand what kind of rights the author has, it is necessary firstly to find out what the object is - the work of the author.
A computer program is an objective set of data, procedures, rules and instructions designed for the operation of computers and other computer devices in order to obtain a specific result, including preparatory materials obtained during the development of a computer program, and the results and audio-visual display produced by this development1. It should also be noted that computer programs are usually classified as literary works.
A database is a set of independent materials presented in an objective form (articles, calculations, normative acts, court decisions and other similar materials), systematized in such a way that these materials can be found and processed using an electronic computer (computing machine). Databases are protected regardless of whether the data on which they are based or which they include are subject matter of copyright1.
Computer programs and databases are copyright items.
Copyright applies to any computer programs and databases, whether they are released or not, presented in an objective form, regardless of their tangible medium and purpose, are protected in the same way as copyrights to works of literature.
The ideas and principles that underlie a computer program or database, or any of their elements, are not subject to legal protection as are ideas and principles of the structure of the interface and algorithm, as well as programming languages.
It should be emphasized that copyright does not depend on the ownership of the tangible medium (item) on which the computer program or database is located. And during the transfer of ownership of the item-tangible medium in which the computer program is expressed, the transfer or grant of copyright to the computer program does not occur.
The author of a computer program is a person, an individual, with the creative work of which this program was created. A person indicated as the author on the original or a copy of the work shall be considered its author, unless otherwise proved.
A computer program can be created both by one author - an individual, and several authors - individuals who will be co-authors of the program. The rights to the program created by the co-authors belong jointly to the co-authors.
Persons who have not made a personal creative contribution to the creation of the program are not recognized as authors of the computer program. If a certain person (or persons) provided the author (or authors) of the program with only technical, consulting, organizational, material assistance, or facilitated the execution of any documents, including those related to official state registration of the program, or monitored the progress of work to create a program, such a person is not recognized as the author (co-author) of the created program. The inclusion of such a person in the number of co-authors of a computer program is illegal. 
From the point of view of copyright legislation, two sections can be distinguished: personal non-property rights of the author and property rights of the author.
Firstly, let us consider personal non-property rights.
Personal non-property rights.
Personal non-property rights belong to the author regardless of his property rights and are reserved for him in case of transfer of exclusive rights to use computer programs and databases. Personal non-property rights are perpetual and inalienable.
The following personal non-property rights belong to the author with respect to his work:
- the right to a name;
- the right to integrity of the work (integrity);
- the right to publication (release).
Now let us consider in detail what is meant by each of the above non-property rights.
The right of authorship is the right to a name. The right of authorship is directly related to the author’s right to a name, i.e. the right to use or authorize the use of the work under his own name, false name, pseudonym or without specifying a name (anonymous). Violation of the right of authorship and / or right to a name entails administrative or criminal liability, depending on the gravity of such a violation. Therefore, the law and judicial practice establish a number of conditions necessary and mandatory for third parties so that their actions are not plagiarized (illegal use). The author cannot transfer the right of authorship and the right to a name by the author’s agreement, and a waiver of this right is void. The right of authorship gives the obligation of everyone not to violate this right. So, no person other than the author can claim their authorship. The right of authorship arises from the moment the work is created. Moreover, it is not at all necessary that the author exercises this right directly when creating the work. This right remains with the author for all his life, as well as the right to protect it. If the author has not claimed his authorship in any way, then the issue related to the protection of copyright should be decided on his own initiative. According to Article 1255, 1300 of the Civil Code of the Russian Federation, the person who is indicated as the author is supposed to be such until his copyright is challenged. However, the author has the right to refuse to indicate his name on copies of the computer program. Thus, many organizations involved in the development of computer programs and databases provide for the conclusion of an employment contract, in which the author refuses to indicate the author’s name on program documents in writing developed in the course of fulfilling their labor duties.
The right to inviolability of the writing. The right to inviolability includes the right to protect both the computer program itself or the database, as well as their names, from any kind of distortion or other infringement that could cause material or moral damage. The right to inviolability implies the prohibition on making changes to any elements of the program for Computers and databases. With regard to the program and the database, protection against changes to them, without the knowledge of the author, of such changes and clarifications that may affect the functionality and their characteristics, is especially important.
The right to publish: The author has the right to publish his work, that is, the right to take action or give consent to carry out an action that makes the work available for the first time to the public by publishing, public display, public performance, broadcasting or cable, or any in another way. In this case, publication (publication) is the release into circulation of copies of the work, which are a copy of the work in any material form, in quantity, residual to satisfy the reasonable needs of the public based on the nature of the work. The author who transferred the work for use to another person under the contract is considered to have agreed to the publication of this work. A work not published during the life of the author can be made public after his death by a person who has the exclusive right to the work if the publication is not contrary to the will of the author of the work, which is described by him in writing (in a will, letters, diaries and the like) . However, it should be noted that, despite the fact that the computer program and the database are copyrighted, some rules do not apply to them. In particular, computer programs are not subject to the right to recall them.
Unlike other personal non-property rights, the right to publication may pass to other persons, for example, to the heirs of the author. This moment confirms the conditional nature of the division of copyright into property and personal non-property rights.
Now let us consider what rights relate to the property rights of the author.
Property rights - the exclusive rights of the author to the economic use of the work in any form and by any means belonging to the author. These rights include:
- the right to reproduce a computer program or database (full or partial) in any form, by any means;
- the right to distribute a computer program or database, including rental;
- the right to modify a computer program or database, including the translation of a computer program or database from one language to another;
- the right to register a computer program or database.
The right to reproduce. The right to reproduce means the possibility of making one or more copies of a work or part thereof in any material form. Reproduction is historically the first and at the initial stage of development of copyright the sole proprietary copyright. Accordingly, to reproduce means to duplicate the work by making copies or in some other way. Reproduction is considered to have taken place regardless of whether the copies of the work have become available to an indefinite set of people. Recording works means fixing them with the help of technical means. Reproduction of a work is also its record in the memory of a computer.
The right to distribution. The right to distribution is an introduction to civil circulation. An exclusive right to distribution means that a product in which a computer program or database is embodied must be entered into civil circulation only with the permission of the copyright holder.
The principle of exhaustion of the right to distribution - after the commercialization in which copyright objects are embodied, the further distribution of the goods does not require the consent of the owners of these objects embodied in this product. Exhaustion of the right to distribution means that the validity of the right to distribution is much shorter than the validity period of all other exclusive rights, since it is valid only from the moment the work is created until the goods are commercialized. Thus, if the original or a copy of a lawfully published work is put into civil circulation in a certain territory through their sale or other alienation, then the further distribution of the original or copies of the work is allowed without the consent of the copyright holder and without paying him remuneration, with the exception of the right to follow.
The right to modify. By modifying a computer program or database we mean any changes, including the translation of such a program or database from one language into another, with the exception of adaptation, i.e. making changes solely for the operation of the program or database on certain technical means of the user or under the control of specific user programs. Moreover, the law provides also legal modification by another person. Such a modification is called decompilation, which is understood as a technique which includes the conversion of object code into source code in order to study the structure and coding of a computer program.
The right to register. The creation, exercise and protection of copyright does not require the registration of a work or the observance of any other formalities.
However, a computer program or database can be officially registered at the request of the copyright holder with the Federal Executive Authority for Intellectual Property.
Article 1262 of the Civil Code of the Russian Federation establishes that the copyright holder of a computer program can register the program with the federal executive authority for intellectual property during the validity period of the exclusive right.
In addition, it should be noted that the database can also be protected as an object of related rights, but subject to the relevant conditions. In order for a database to relate to an object of related law, it is necessary whilst creating such a database there should be significant financial, material, organizational and other costs, or it should contain at least 10000 independent materials that make up the contents of the database.
Also for databases there is another type of property law - the right of the manufacturer. It represents the right to extract materials from the database and carry out their subsequent use in any form and by any means. In this case, the extraction of materials means the transfer of the entire contents of the database or a substantial part of its constituent materials to another information medium using any technical means and in any form.
The exclusive right of the database manufacturer is recognized and valid regardless of the availability and validity of copyright or other exclusive rights of the database manufacturer and other persons to the materials that make up the database, and to the database as a whole as a composite work.
Despite the above mentioned rights and principles of how they can be violated, it should be noted that there are a number of actions that are not a violation of copyright.
In accordance with article 1280 of the Civil Code of the Russian Federation, a person lawfully owning a copy of a computer program or a copy of a database (user) is entitled without the permission of the author or other copyright holder and without paying additional remuneration to:
- carry out the actions necessary for the functioning of the computer program or database (as well as during use in accordance with their purpose), including recording and storing in the computer memory (one computer or one network user), entering these changes into the computer program or database solely for the purpose of their functioning on the user's technical equipment, correction of obvious errors, unless otherwise provided by the contract with the copyright holder;
- make a copy of the computer program or database, provided that this copy is intended only for archival purposes or to replace a legally acquired copy in cases where such a copy is lost, destroyed or has become unsuitable for use.
A person lawfully owning a copy of a computer program is entitled, without the consent of the copyright holder and without paying additional remuneration, to study, research or test the functioning of such a program in order to determine the ideas and principles that underlie any element of a computer program. A person lawfully owning a copy of a computer program is entitled, without the consent of the copyright holder and without paying additional fees, to reproduce and convert the object code into the source text (decompile the computer program) or instruct other persons to carry out these actions if they are necessary to achieve the ability to interact computer programs independently developed by this person with other programs that can interact with the decompiled program, subject to the following conditions:
a) the information necessary to achieve the ability to interact was not previously available to this person from other sources;
b) these actions are carried out in respect of only those parts of the decompiled computer program that are necessary to achieve the ability to interact;
c) the information obtained as a result of decompilation can only be used to achieve the ability to interact with an independently developed computer program with other programs, cannot be transferred to other persons, except when it is necessary to achieve the ability to interact with an independently developed computer program with other programs, and also cannot be used to develop a computer program, in its appearance substantially similar to a decompiled computer program, or to implement another action violating the exclusive right to a computer program.
The above mentioned actions should not contradict the normal use of a computer program or database and should not unreasonably prejudice the legitimate interests of the author or other copyright holder.
It should be noted that as copyright objects, computer programs and databases are subject to the Berne Convention for the Protection of Literary and Artistic Works of 1886. The Berne Convention relates to the protection of works and the rights of their authors. It is based on three basic principles and contains a number of provisions defining a minimum level of protection, as well as special provisions for developing countries that wish to take advantage of them.
Three basic principles are as follows:
1. If the country of origin of the work is one of the Contracting States (i.e. the author of the work is a citizen of such a state, or works that were first published in such a state) it must enjoy the same amount of protection in each of the other Contracting States what the latter provide to the works of their own citizens (the principle of "national treatment").
2. Protection should not be conditional on the performance of any formalities (principle of “automatic” protection).
3. Protection does not depend on the availability of protection in the country of origin of the work (principle of “independence” of protection). However, in the event that a Contracting State provides for a longer period of protection than the minimum period prescribed by the Convention and the protection of a work ceases to be valid in the country of origin, then after termination of protection in the country of origin protection may be refused.
However, the copyright laws of the Russian Federation differ from the provisions of the Berne Convention. Probably the most important difference is the duration of the exclusive right.
In accordance with the provisions of the Berne Convention, the duration of the exclusive right is the entire life of the author and fifty years after his death2. The legislation of the Russian Federation in this regard provides that the exclusive law is valid throughout the life of the author and seventy years, counting from January 1 of the year following the year of the death of the author.
Summing up, it is necessary to pay particular attention to the fact that, unfortunately, at present, copyright protection for computer programs and databases in practice does not have a clear and unambiguous tool that would reveal whether there is a violation of law or not. Perhaps these difficulties are caused by the fact that such objects of law as a computer program and a database are difficult to understand, and therefore, when establishing a violation, it is difficult to conduct any examination, for example, to determine the fact of plagiarism.
In practice, it often happens that to establish a violation it is necessary to go through several courts.
For example, in 2011, company A went to court demanding compensation for violation of exclusive rights to a software product, since organization B delivered the software product without any rights to it.
In the court of first instance, organization B relied on the fact that company A owns the rights to the software product with a certain “letter designation of the developer code”, and the software product specified in the Supply Agreement has a different code in the waybill and act on production delivery and acceptance. At the same time, the names of software products were identical.
In the court of first instance, the plaintiff was refused a forensic computer-technical examination in order to compare the software product of company A and the software product supplied by organization B. Instead, the court independently concluded that since the software product presented in the evidence was dated 2010 and delivered in accordance with the consignment note in June 2009, it could not be delivered by organization B, so the rights of company A were not violated, and the court ruled to dismiss the lawsuit.
Disagreeing with the decision of the trial court, company A filed an appeal. The appellate court relied on the same facts as the trial court, however, granted the request for a computer-technical examination. The expert was presented with a CD containing a reference sample of the controversial software product, as well as a CD containing screenshots and files supplied by the organization. During the examination, the expert could not unequivocally answer the questions posed to him. Thus, in fact, the examination in this case did not lead to anything. The court again considered the evidence of violation by company B of the exclusive rights of company A insufficient and left the decision of the trial court unchanged.
The ruling of the court of appeal was appealed by company A to the cassation court. In support of its position, company A stated that the question of whether a copy of a particular program is counterfeit is not decided by formal comparison of the names of the programs in the administrative documents, but by comparing the program code of the allegedly counterfeit copy with the reference copy of the original program. The cassation court upheld this position. As a result, the case was referred for a new trial to the court of first instance, which satisfied the requirements of company A in full.
As we can see from the above example, the courts, due to the insufficient practice of resolving disputes related to computer programs, rely on existing experience in resolving common disputes from supply contracts. Thus, they lose sight of the specifics of such an object of the dispute as computer programs.
In some cases, disputes about the presence or absence of a fact of copyright infringement drag on for several years3.
Despite the fact that the authors have a sufficiently large amount of rights to computer programs and databases, they do not always have an idea of how to manage the rights and what can be done to protect them. The most appropriate approach in this case would be to contact a specialist in the field of copyright, who can provide qualified assistance and answer most of the questions regarding such objects of law as computer programs and databases.
1. Civil Code, part 4.
2. Berne Convention for the Protection of Literary and Artistic Works.
3. Decision of the Supreme Court of the Russian Federation dated 03.08.2018 N 307-ES18-10905 in the case N A42-6657/2015.