ds_gen N. 6 – 2007 – D & Innovazione


Vasiliev-IMG-1Information technology and authorship law*


Gennadij Vasiliev

St. Petersburg State University



* Lecture, given in Lapenranta University in the 24th of April 2007.





1. – To choose the right law


Information technologies affect authorship law in many ways. But first of all they create at least two new objects of authorship law, I mean computer programs and databases. And Russian legislation protected them quite a long time ago – a special Law To Protect Computer Programs and Data Bases was enacted in September 1992. And the general Authorship law was enacted only in July 1993.

So the first problem we should talk about is what law to choose. If we talk in terms “general” and “specific” we should use the Law To Protect Computer Programs. If we talk in terms of time we should take the Authorship law as the latest.

Arbitrage Courts used to use the first way. It means that in case of contradiction we look in the earlier law as it provides specific rules. For example, there is important difference about time of validity. For computer programs and data bases is now set specific time of validity – 50 years (chapter 6 of the Law To Protect Computer Programs). The general time of validity is 70 years (chapter 27 of Authorship Law). Why are they different, you may ask. It is because in the beginning of 90-ths it was set in 50 years for any literary work, pieces of art etc. And that’s why for programs and bases it was also 50 years. But in 2004 the general rule was changed and the time was increased up to 70 years. I think no one can tell why they didn’t change the special law about computer programs and databases. But it remains unchanged. Fortunately the 4th Part of Russian Civil Code, coming into force 1st of January 2008, makes those odds even and in the near future for any literary works, including programs and databases we will have equal time of validity – 70 years.

Unfortunately in the summer 2006 the Supreme Court of Russia declared the opposite approach. It said that in case of contradiction the Authorship law should prevail. We are lucky enough to have a new code coming into force so soon. So I hope this different approach will not make any troubles in practical life.



2. – Specific objects


Current legislation as well as future one considers computer programs as literary works. The idea is that the only way to create them is to use written language, quite the same way we use Finish or Russian to write a novel or a play. But there is some important difference. Any literary work has some creativity – we feel emotions of the author, his personality. In programming ratio is much more important. And we should remember that nowadays programming could mean also building something of some basic elements such as libraries, modules etc. The author doesn’t write anything, he just choose correct combination of elements.

That’s why sometimes it is difficult to prove that you are the author of the program. To help an author, law gives him a right to register his program. It is not necessary at all, but it can help you in the trial. To register the program you send it and some other papers in federal executive body for intellectual property and so declare your authorship.

Databases are considered as collections that comply with the European law. Of course if you use anybody’s works in your base you must get his consent. Otherwise your whole base can be considered as illegal. The law does not protect content of the base but only efforts to organize the materials used.

Current law as well as future one goes even further and does not consider computer languages as authorship law objects. It means that you can use it free for your own programming. But it also means that if you create new computer language, you will not be protected at all. Anybody will use it free.

The law doesn’t provide any rules for domain names and so called “deep” hyperlinks. As for the first problem, it is said only that you can’t infringe other’s patents and trade marks with your domain name. And as the law doesn’t prohibit “deep” citing, you can use it free.



3. – Exercising the exclusive right concerning information technologies


Free use of programs and Open Source technology. One of the basic concepts of Russian authorship legislation is charging any use of the work. To use it free you must either have a law which allows you that or the contract with the author in which you expressly said about gratuitous use. Unless you don’t have such a contact, you use it illegally.

An idea of Open Source technology has many supporters among the pragmatists. But lawyers must remember that this idea is quite dangerous for users – if you got the permission to use the program free and then the author changes his mind it could be difficult to prove that some time ago you got his permission for a free use.

For computer programs there are some specific cases of free use. First of all any user can free make any adaptation needed to make the program work on his own hardware (so called adaptation right). And the other important case is decompilation. If the program was compiled we can decompile it only to understand how it works with other programs but not to create an analog.



4. – Widespread violations


Violations of exclusive rights of authors are very often in Russia nowadays. Id like to say a few words about some problems which relate particularly information technology.

First one is the question of exhaustion of the exclusive right. According to article 16 of the Authorship law 1993 if the copy of a work was properly sold, you can use it free as you like without author’s consent. We call it exhaustion of the author’s right. What is the purpose of that rule? It seems to be obvious. If I buy a book or a statute, they become my property. And with my property I can do whatever I like. But I must always remember that this statute or book is just a copy of a literary work or a piece of art. And using my property I must not violate the rights of the author. How this provision is usually construed in Russian everyday practice?  If I can use it in any way, I can resell it and I can exchange it. That means that I can exchange it on another work and then resell it. And if I have plenty of such works, I can start a business affair. If you’d like to resell or exchange your copy, you can come to me. For small fee I can help you. For the first sight we still act with accordance with the law. But all this is very similar to file exchange systems such as Napster. And at last one of famous Russian computer program producer decided to sue such a business man. He lost three instances but won the last one. The High Arbitrage Court gave a completely different qualification to all such relations. It was said that if you exchange the copy of a program for fee, you do nothing else but lease the program.  And to lease the program you must have the author’s consent. And you don’t get such consent buying the copy of such a program. This case could be called a precedent. Now any author whose works are used the same way have a good chance to win such a case. You see that in this case the problem was not in the law but in it’s construction. The provisions of the new Code are the same so we all can use that decision

The other problem concerns the collective management of author’s rights. According to article 44 of the Authorship law 1993 authors can create non-profit organizations which purport to help them in giving permissions to use their works and collecting fees for their use. The problem is that such an organization can give permission to use the work without any authority of the author. In 1993 it was only one organization for collective management. The idea was to help whose authors who can not make a contract with it. But today the easiest way to violate the law legally is to create such an organization and to get a permission to use any piece of art you like. In a new Code they are going to solve the problem. Authors still can create so many such organizations as they want. But you can create them just in some spheres. And to give permission to use the works without authority can only one organization in one sphere. And that organization must get a statutory accreditation that is some kink of license.



5. – Authorship law in the Internet


The first thing we should talk about now is what author’s rights internet publication concerns. When we put a literary work in the Internet we file it in the server and so we use a right on reproduction. The right to distribute we used to use by selling hard copies (such as books or CDs) so we don’t exercise the right to distribute in the internet (unless be talk about internet shops). And when a user clicks on the text or the song he files it in his own computer and makes a copy of the work. Unless we talk about hackers the user can’t get anything from the site without our consent.  So to publish anything in the Net we must get the author’s consent on reproducing his work, and on giving permissions to anybody to file a work and make its copies. The Supreme Court said about the problem two important things. First, placing the work in the Net you use the work. And the second is that the owner of the site can be considered as infringer if he publishes anything in the Net without author’s consent.

To describe this situation shorter in 2004 the authorship law has specially provide a right to inform everybody interactively. That special right comes into force in the 1st of September 2006. But I’d to stress that even before enacting that amendment we must get the author’s consent on placing the work in the Internet.

So any copies made from the Internet without author’s consent are pirated copies. But article 18 of the Authorship law allows anybody to reproduce one copy of a work for private use. So if I’m acting in good faith that is I don’t know and I must not know about the infringement of the author’s rights, I will bear no responsibility for that infringement. It is the owner of the site who is the violator.

And here is another important question – about electronic libraries. Some years ago according to Russian library law the libraries could let you any work to read for free. And it is the library which decided how to organize access to the works. So many people organized so called electronic libraries that are sites where you can get any book you want. The infringement of the author’s rights looks obvious to specialists but not for ordinary people. That’s why in 2004 an amendment to the Authorship law provides that any digital copies of the work can be given to users only in the library halls and library must exclude any possibilities to make another digital copy of that work.



6. – The last codification of Russian Authorship law


6.1. – Pro


The new part of the Civil Code was enacted on the 24th of November and will come into force on the 1st of January 2008. The first version of the project enacted was published in March 2006 so you can see how quickly it was passed. Despite it come through the parlament quite easy it make lots of discussions among the lawyers and most the votes heard were against the law. So what was the reasons pro and contra the project?

The first argument for new law was the idea that we must finish the codification of all civil legislation. You know it began in 1994 when the first part of the code was enacted. The second part comes into force in 1996, the third in 2002. So the legislation about exclusive rights was the only sphere to be codified.

The other reason was to find and eliminate many defects of the current legislation. It was created in the beginning of the 90ths, in the beginning of the reforms of Russian economy and public authorities. And the lack of experience in creating laws in the market economy we all can feel. So codification makes the law certain and clear.

The next reason was to build the legislation using the same basic concepts so to make it one solid system. This concept is the concept of exclusive right as an absolute right and coming Code provides some general provisions about what is the exclusive right and how to dispose of it.

The other reason was to confirm that authorship law as well as patent law and so on is the party of the civil legislation. The law even repeats the general provisions of the contract law. For example it expressly states that we must apply those general provisions to authorship law contracts.

The last important reason for codification was to protect authors and other owners of exclusive rights. For that purpose two new neighboring rights were created. New ways of protection in different situations were provided, and detailed rules about disposing of exclusive right were envisaged.


6.2. – Contra


Main arguments against the codification were as follows.

First of all it was usually said that we should spend more time in discussing the project. But codification began in 1994 that is more 13 years ago. The project in question is the forth one, so we had enough time to talk. 

The other reason was threat to disorientate the practical lawyers by changing law. The contra-argument was that most of provisions are similar to existing ones so it wouldn’t be difficult to use them. 

And the last important argument was that the project contains too many administrative provisions. It was said in reply that even in existing Code there are already some, so that’s not a problem at all.


6.3. – Review of new provisions, concerning authorship


There are some terminological changes that worth mentioning. Current legislation talks about exclusive rights of author and separate property rights and those of non-property. The new Code changes names. Now only property rights are called exclusive and all authors’ rights in general are called intellectual rights.

There are some changes about contracts in this sphere. By a contact to create a work we can now allow to use it. Today it should be two separate contracts – first one to create and the other one to use. The other important issue is the unification of authorship law contacts with those of patent law. General provisions about them we can find in chapter 69 of the Code. You can alienate your exclusive right and so all your fights are vested to the other party. And you can give license to use a work so the exclusive right remains yours.

A license agreement can be made of two kinds. You can give an exclusive license that means nobody, even you, may use a work in the contract time. And you can give a non-exclusive license that allows you to use a work yourself and give another license to third parties. Prima facie you give a non-exclusive license and any rights you haven’t transferred expressly are vested in you.

There are some specific norms about creating a computer programs or databases upon a contract. In a contract to create a work an exclusive right is presumed to belong to a customer. If the program or database were made incidentally the exclusive right vice versa is vested in creator. In both cases the other party gets a free non-exclusive right to use the work in question.

The new Code also provides new ways to protect author’s rights. For example in case of infringement an author may ask to publish the court decision to let anybody know about breaking his rights. Any machines or equipment that is used for piracy could be confiscated and either destroyed or turned into public ownership. In case of gross violation the legal entity could be liquidated. The most common way of protection is to ask a monetary compensation when an author must not prove any damages. The new law provides that such a compensation could amount from 10 000 up to 5 million rubles that is from 300 up to 150 000 euros. But from the 1st of January you can also calculate it as double price of the copies in question or right illegally used.

There are two new neighboring rights established. First one is that of publisher. If somebody for the first time a work after the time of validity has expired he got an exclusive right to use a work. The law stimulates searching unpublished works and bringing them to the public. A publisher will have such a monopoly for 25 years starting from the 1st of January of the year next to that of publishing.

The other new right is one of database creator on monopoly use of its content. A creator gets this right if he put significant efforts in the base. And any creator of a base with 10 000 elements or more is prima facie considered as one who put significant efforts in it. The time of validity is 15 years. And each time the base was changed the time starts to ago from the vary beginning. To extract anything from the base one must lawfully purchase it only for private use. We should also remember that foreigners may get the right in question only if in their native land Russians are also got the same protection.

The last important novelty concerns information as an object. Current legislation considers information as an object like property or intellectual property (§§ 28, 139 of the Civil Code) but The Law to Enact the Forth Part of the Civil Code exclude these provisions. So since the 1st of January 2008 information will not be an object at all. Only documents can be considered as objects but those documents are mostly movable things. So the law is going to ignore the specific of information.