How to protect a computer program and database: legal methods
Computer programs and databases are protected in Russia as objects of copyright. The work of programmers is recognized as a creative activity. If you have created a computer program or database, you can protect it. There are several ways to do this in the context of an imperfect legal framework for these objects.
How to protect a computer program and a database, Yuri Gorbachev, managing partner of the Lirate company, will tell.
What is a database and a computer program?
Computer programs and databases are part of our reality. Business collects information for subsequent systematization in order to improve performance. Developers create computer programs to automate processes and facilitate activities in various fields. New developments appear daily, become valuable for developers and entrepreneurs and require protection.
Let’s define databases and computer programs in order to understand what this article will be about.
A database is information collected in a system in the form of separate files that can be found and processed using a computer.
The Rospatent registry contains databases of company websites, inventory summary data, telephone directories, customer information, data of individuals interested in credit products, catalogs and collections of articles. Databases contain information about people, goods, services, orders.
A computer program is a series of instructions that control a computer. There are the following replacement definitions: “software”, “software”.
The Rospatent registry contains programs for managing access control terminals, software modules for controlling information exchange of messages, health care management systems, as well as the process of preparing and refining oil, and other solutions used in various fields. Programs are developed to solve certain problems: processing text documents, managing databases, creating graphic images. A computer program can be either a stand-alone application or part of a larger system.
Who owns the program or database?
Initially, programs and databases belong to the creators – one person or team. In the second case, the project participants are co-authors. They have the same scope of rights, unless otherwise provided by an agreement between them. A co-author is a person who has made a creative contribution to the creation of an object.
In practice, co-authorship is a common phenomenon.
The authors have:
Non-property rights. This includes the right to authorship and publication, protection of reputation.
Exclusive rights. This group includes the right to use, dispose of the object, modify it, register it with state bodies, prohibit others from using it.
Authors can transfer exclusive rights to other persons.
When a customer concludes an author’s order agreement with a programmer for the creation of a program, we recommend that you specify in detail what result is to be obtained, who will own the exclusive rights to the created object. It is desirable that the rights be alienated in full in favor of the customer. Then problems with using the program should not arise.
Copying the program by competitors and claims from the author-developer are the main problems that the customer faces. A well-executed contract will help to defend the exclusive right.
Often problems arise with determining who owns the exclusive rights to the development, if the database or program was created on the instructions of the employer. The law establishes that in this case the customer automatically receives the rights to the object.
The job responsibilities of the employee should include the creation of a database or computer program. Otherwise, the author will prove that he created the object of his own free will and did not transfer the rights to it. The employer must pay remuneration to the author in addition to wages. Often developers do not receive this payment. This is a violation of their rights.
Regarding databases, we note that related rights to this object may arise from the manufacturer – this is the person who collected and filled the database. This is not a creative activity, so copyright does not apply. The manufacturer becomes the owner of a related right if the collection and systematization required financial, organizational and other investments. They need to be proven.
If there are more than 10 thousand independent elements in the database, then the manufacturer has a related right automatically, regardless of the amount of investment in systematization.
Registration of the source code in Rospatent
The recognition of computer programs and databases as objects of copyright suggests that they receive protection immediately after creation, automatically. The author doesn’t have to do anything. After creation, even before publication, the object is already protected not only in the country of the author, but throughout the world.
The source code has signs of a literary work, therefore, its copyright protection was introduced at the legislative level. However, not all so simple.
It is difficult to prove that the program was created at a certain moment and by a specific person. The procedure for registering computer programs and databases in Rospatent comes to the rescue. After passing, the applicant will receive a certificate that proves his copyright or exclusive right.
An applicant is a developer or other person to whom exclusive rights have been transferred under an agreement.
Registration with Rospatent is recommended for those who plan to use a program or database to make a profit. This helps protect your rights in the future, especially in court, and enter the software into the register of the Ministry of Digital Development of the Russian Federation.
In order to register, you need:
Collect and prepare documents: application, registered materials and abstract, consent to the processing of personal data, consent of the author to indicate information about him, documents confirming the payment of the fee. Forms and examples of documents are available on the Rospatent website.
Pay the state duty: for companies – 4,500 rubles, for individuals – 3,000 rubles.
Submit documents to Rospatent: send them through the FIPS website or Gosuslugi, by mail or by courier to the Patent Office in Moscow.
Get a positive decision from the department.
See information about registration and inclusion of software or database in the appropriate registry.
Registration is fast – within 1-2 months.
The peculiarity of copyright is that it protects only the form of the program, but not its content. If another person makes a change to the code or uses a different programming language, you will not be able to do anything about it even if you have a certificate of registration of the program with Rospatent.
Inclusion in the register of computer programs protects only from direct plagiarism of the source code. The name, algorithms, design and other elements of the program remain unprotected.
It is important to understand that registration with Rospatent is not the only way to protect copyright in software and databases. Sometimes a combination of methods is needed.
Other options for protecting computer programs and databases
Computer programs and databases can be protected by:
Register the name of the program or database with Rospatent as a trademark. This is protection from competitors, they will not be able to use the designation for their own purposes. When using a program under a registered name illegally, offenders can be prosecuted.
Protect as a trade secret, if the software and database are not yet known to anyone, they will only be used internally by the company. This procedure takes place in the organization. It is necessary to introduce a regime of trade secrets and properly execute all documents. The company will independently protect its program or database from third parties.
Get a patent. The scope of protection will not include the entire program, but only a part of it: a new algorithm or data processing method, design or interface element, hardware and software complex. This is a complex and costly process. It should be chosen when there is confidence in the patentability of an object and an urgent need to fix the rights to it.
Use technical methods of protection. These include passwords, encryption, field masking, backups, and access restrictions.
These methods can be used in combination. Except know-how. It prohibits disclosure of objects to third parties, which means that it cannot be used in conjunction with other protection options that involve declassification.
Why protect software?
After receiving documents confirming ownership, the right holder has the following advantages:
The availability of official documents for a program or database attracts investors. Increased confidence in the project and its potential. This is true for information technology businesses. Registration of a computer program, its elements, database simplifies the project evaluation process for investors.
Registration of a computer program will be a plus if participation in grants is planned. In competitions, there is a requirement – the availability of official documents confirming the rights to intellectual property.
You can transfer exclusive rights to a program or database on the basis of a license agreement. Under such an agreement, rights are transferred temporarily. In the license agreement, you need to determine the amount of royalties – fees for using a computer program or database. Additionally, you can limit the territory of use of your object and the possibility of transferring it under sublicensing agreements. We recommend that you describe in detail the clause on liability for non-compliance with the terms of the contract.
The computer program can be included in the assets of the enterprise. To do this, the value of the object is determined in one of the ways: comparative, profitable, costly. The database or computer program is then put on balance.
A computer program or database is a competitive advantage. Protection is needed for the safe use of their developments and the ability to prohibit these actions by others.
Liability for illegal use of the program and database
The right holder has the right to recover compensation or damages from violators, stop the violation and seize material media with a database or computer program. To do this, you first need to file a claim in the name of the violator with your requirements, and then – a lawsuit in court.
The law establishes the amount of compensation:
The final amount is determined by the court.
In 2018, the Arbitration Court of the Republic of Crimea exacted from the violator exactly as much as the copyright holder requested – 3,433,200 rubles. Additional court costs were charged. The key factor is that the plaintiff had a certificate for the Avibus: Bus Station Management computer program and license agreements with other persons, to which the copyright holder confirmed the amount of necessary compensation.
If the behavior of the violator can be recognized as an act of unfair competition, then the right holder can apply to the FAS RF with such a statement. Employees will conduct an inspection and impose a fine if the violation is confirmed. This applies to situations where a competitor is trying to get benefits for his business at the expense of someone else’s name and developments.
Criminal liability is provided for the acquisition, storage, transportation of counterfeit copies of computer programs and databases for the purpose of sale on a large scale. Depending on the circumstances of the case, a punishment is chosen: a fine, compulsory work or imprisonment.
The legal status of computer programs in different countries has some peculiarities. If you plan to bring the development to a foreign market, study the legislation of the selected country. International provisions remain common, for example, the Berne Convention for the Protection of Literary and Artistic Works states that computer programs are protected by copyright. You can definitely rely on this.
The law regarding computer programs and databases is not perfect, but our task is to use the existing legal norms in order to get the maximum benefit.
Often, developers and entrepreneurs think about protecting computer programs and databases too late, when the object has already been stolen. We recommend acting in a timely manner, applying a set of legal and technical methods of protection immediately after the creation of an intellectual property object.
