Protection of Software and Databases
Licensing and Certification
Electronic Russia 2002-2010
Protection of Software and Databases
In Russia, copyright protection is available for software and databases. The two principal acts governing this protection are the Law of the Russian Federation on Copyright and Neighbouring Rights (5351-I/1993) and the Law of the Russian Federation on Legal Protection of Computer Programs and Databases (3523-I/1992).
Software products are protected as literary works and databases as compilations. Copyright protection is offered for software and databases either (i) originally published in Russia, or (ii) remaining unpublished but existing in some objective form in Russia. The copyright on software and databases is automatic upon their creation, with no formalities required, although the author may choose to register them at any time during the period of copyright protection in order to confirm his or her copyright. Copyright may be registered with the Russian Patent Office (ROSPATENT). The protection lasts for the lifetime of the author and for 50 years after his/her death.
Moral rights and economic rights
The author is the individual whose creative efforts brought the software or the database into existence. Regardless of any economic rights, the author is guaranteed the following moral rights:
- the right of recognition as the creator of the product;
- the right to integrity;
- the right to use the work under the author's name or a fictitious name; and
- the right to make public.
The author is granted economic rights which include the following:
- a publishing right;
- a reproduction right;
- a distribution right; and
- a modification right, including translation.
Unlike the moral rights, which are personal to the author and non-transferable, the economic rights may be licensed or assigned.
Licensing and assignment
At the parties' discretion the licensing agreement may be registered with ROSPATENT. The licence agreement must be in writing and must specify the rights of use, duration, territory, licence fees and other terms that the parties consider essential. Unless the term is specified, the licensor may withdraw the licence after five years with six months' written notice. Sales of the software to end users may be in the form of 'shrink-wrap' licences.
The assignment of registered software or databases is subject to mandatory registration with ROSPATENT.
The licensee is automatically granted an adaptation right and the right to make backup or archive copies. The licensee may also decompile the software, provided that (i) the information required for the interaction of the licensed software with other software is inaccessible from other sources, and (ii) the information derived from decompilation is used for interaction with other software, and not for the creation of other computer programs.
Software produced during the course of employment
The author of software and databases created in the course of employment acquires moral rights therein, and his/her employer acquires the economic rights, unless the parties agree otherwise.
Liability for infringement
In the event of infringement the following legal remedies are available:
- recognition of rights before the court;
- restitution and termination of infringement (or acts which may potentially lead to infringement);
- damages, including lost profits; and
- compensation ranging from approximately $16,000 to $160,000 as may be determined by the court, in lieu of damages.
The protection of computer chip design is regulated by the Law of the Russian Federation on the Legal Protection of Chip Design (3526-I/1992). The chip design is protected, provided that it is original (ie, it was created independently by the author and not copied). The originality of the chip design is presumed. The author of the chip design is the individual whose creative efforts led to the chip's creation. The proprietor may stamp the letter 'T' on the chip for notification of his or her proprietary rights.
Rights in chip design
The author is guaranteed the right to be recognized as the author of the chip. This right is personal to the author and inalienable. The author is also guaranteed the right to use the chip design by manufacturing and distributing it. The right to use the chip design may be assigned, licensed and bequeathed.
Term of protection
Protection lasts for 10 years after the earlier of (i) the first use of the chip or (ii) registration of the chip design with ROSPATENT.
Registration with ROSPATENT is optional and may be effected within two years after the chip was first used. Assignments of registered chip designs are subject to mandatory registration.
Liability for infringement
In the event of infringement the following remedies are available to the aggrieved party in court:
- recognition of rights;
- restitution and termination of infringement (or acts which may lead to infringement); and
- damages, in accordance with the Russian civil laws.
Activities which are only permitted to be carried out on the basis of a licence are set out in the Federal Law on Licensing of Certain Activities (128-FZ/2001). In accordance with the Law on Licensing, the following activities, among others, must be licensed:
- the development, manufacture and sale of encryption software and other software and hardware for the protection of confidential information. These are licensed by the State Technical Commission;
- the development, manufacture, maintenance and distribution of cryptographic devices, and related serviced. These are licensed by the Federal Agency for Governmental Communications (FAPSI);
- The development, manufacture, distribution and acquisition of surveillance and interception devices. These are licensed by the Federal Security Service (FSB); and
- The manufacture and distribution of products and services for the exposure of surveillance and interception devices. These are licensed by the FSB and FAPSI.
Certain software and hardware may only be used in the Russian Federation if certified by the respective Russian authorities. These include:
- encryption devices (certified by FAPSI);
- software for protection of confidential information (certified by FAPSI); and
- information systems and databases used for servicing individuals and companies (certified by FAPSI).
Chapter 28 of the Russian Criminal Code is specifically devoted to computer crime and contains three prohibited criminal offences as follows:
- Article 272 prohibits unlawful access to computer information if this results in the deletion, blocking, modification or copying of any information, or interferes with the operation of an individual computer, computer system or computer network. The maximum penalty is five years' imprisonment.
- Article 273 makes it an offence to create software or modify existing software so that it knowingly results in the deletion, blocking, modification or copying of any information, or interferes with the operation of an individual computer, computer system or computer network. The use or distribution of such programs, or any material media containing such programs, is also prohibited. The maximum penalty is seven years' imprisonment.
- Article 274 provides that violations of rules for the operation of computers, computer systems or computer networks constitute an offence if they result in the deletion, modification or copying of confidential information protected by law, and cause substantial harm. The maximum penalty is four years' imprisonment.
The Russian Criminal Code also prohibits a number of other activities which may be applicable to computer crimes, such as:
- infringement of privacy (Article 137);
- infringement of the privacy of mail, telephone, postal, telegraph and other communications (Article 138);
- the unlawful obtainment and distribution of commercial, tax or bank secrets (Article 183); and
- the infringement of copyright or neighbouring rights (Article 146).
The Russian courts have considered a number of criminal cases on computer crime to date. However, the Russian Supreme Court has not issued any comments or guidance on how such cases should be uniformly adjudicated. Responsibility for the investigation of computer crimes rests with the specialist 'R Department' of the Ministry of Internal Affairs of the Russian Federation.
The Russian government has approved the Electronic Russia 2002-2010 programme (Government Resolution 65, dated January 28 2002). The purposes of the programme are:
- broad implementation of information and communication technologies;
- free distribution, transmission and receipt of information; and
- training of IT specialists and users.
The following goals must be attained to ensure the programme's successful implementation:
- the creation of effective IT legislation;
- increased interaction between government authorities based on information technology;
- efficient and broad use of information technology in social and economic spheres;
- IT-based training;
- further development of the telecommunications network; and
- the establishment of a unified information and telecommunications network for interaction between government authorities.
The legislative developments in the area of information technology must be based on the following principles:
- the unified information field;
- the integration of Russia into the international system of information exchange;
- the rights of individuals to receive information from public sources;
- publicity and openness in drafting legislation;
- publicity and openness in considering applications for licences and certifications;
- equal business conditions and elimination of monopolies;
- legal resolution of problems related to the investigation of computer crimes;
- simplified export of IT products; and
- development of a unified framework of Russian IT legislation and compliance with international laws.
An interdepartmental committee has been created to implement the programme. The chairman of the committee is German Gref, the minister of economic development and trade, and the deputy chairman is Mr Reiman, minister for communications and information.
The programme envisages three consecutive stages.
First stage - 2002
The first stage includes a plan for monitoring the following matters:
- global trends in IT development and their use in social and economic spheres;
- the degree of IT development in Russia;
- the efficiency of state funding for IT projects;
- the efficiency of IT use by government authorities and state owned institutions, and the availability of IT resources for them; and
- the efficiency of the existing IT legislation.
The first stage also envisages the drafting of a number of bills which will bring the Russian IT legislation into line with international law. In addition, it provides for the development of the telecommunications network by government authorities, as well as for the training of IT specialists and users. Preparatory steps must be taken and pilot projects initiated to connect government authorities and state owned institutions to computer networks. Additionally, the programme for training government personnel, the unemployed and the socially unprivileged must be developed and initiated.
Second stage - 2003-2004
The purpose of the second stage is the implementation of projects facilitating interaction between government authorities and businesses in relation to tax, customs, company registration and liquidation, licensing and certification, and other statutory filings. Pilot projects for the implementation of unified IT systems in defence companies are envisioned. A unified information and communication network must be created for government authorities. Resources must be allocated for training IT specialists in the leading universities and increasing the number of IT graduates.
Third stage - 2005-2010
The third stage of the programme will create the necessary basis for widespread IT access in all economic spheres, on the basis of the single information and telecommunications network. The unified system of information and communication of the governmental authorities and state owned enterprises must be completed at this stage.
For further information on this topic please contact Christian von Wistinghausen at Beiten Burkhardt by telephone (+7 503 232 9635) or by fax (+7 503 232 9633) or by email ([email protected]).