22 June 2022

The Constitutional Court obliged to introduce amendments to the Civil Code on copyright for computer programs

The programmer Anton Mamichev began to sue the former employer of Intervim LLC, owned by the Swiss Veeam Software AG, in 2019. The Primorsky District Court of St. Petersburg ruled that the programmer was right, considering that the eLearning Metadata Manager (learning content management system) developed by him was used illegally by the employer. After his dismissal from Intervim in 2016, Mamichev offered the employer to conclude a license agreement, but the employer delayed the signing. Soon the mention of Mamichev's authorship was erased from the program code. In total, Anton Mamichev was to receive more than 23 million rubles in compensation from the defendants. In addition, they were forbidden to use his program.

However, Mamichev lost on appeal in the city court, in the cassation instance, and in the Supreme Court. The courts refused to satisfy the plaintiff's claims, referring to Part 3 of Art. 1260 of the Civil Code of the Russian Federation: "The translator, compiler or another author of a derivative or composite work exercises his copyrights subject to the rights of the authors of the works used to create the derivative or composite work." A composite work was considered due to the fact that during the development Mamichev used third-party files and libraries, without which the program will not work.

Anton Mamichev believed that this norm of the Civil Code violated four articles of the Constitution at once, related to the protection of intellectual rights. When considering the complaint, the Constitutional Court referred to the Berne Convention for the Protection of Literary and Artistic Works. Part 2 of Art. 3 of the Convention says that translations, adaptations, musical arrangements, and other adaptations of work are protected equally with the originals, without prejudice to the authors of the original.

As a result, the court recognized Part 3 of Art. 1260 of the Civil Code contradicted seven articles of the Constitution at once and obliged the federal legislator to amend the Civil Code, “to ensure the balance of the rights of the author of a computer program, which is a composite work, and the rights of the authors (copyright holders) of objects (computer programs) used to create it". In addition, the courts, when reviewing the claim of Anton Mamichev, are obliged to take into account the position of the Constitutional Court and cannot refer to Part 3 of Art. 1260 of the Civil Code of the Russian Federation.

Patent Attorney, Managing Partner of Zuykov and partners Sergey Zuykov believes that the decision of the Constitutional Court will significantly correct the judicial practice in the field of copyright.

The decision of the Constitutional Court is extremely important and long-awaited. There is a lot of controversy about creating programs using or based on free code programs. The courts often refused on formal grounds: the rights to the entire program do not belong to anyone, which means that the program created on the basis of the "open" program also does not belong to anyone or contains an insignificant, compared to the entire "open" program, contribution of the author, and etc.

Therefore, there is great hope that the courts will consider claims for establishing the right holder or violating the rightsholder's rights to objects created on the basis of open ones for use in a different way,” Sergey Zuykov believes.

Source: Kommersant Publishing House

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