In Russia, the Civil Code will be changed so as not to prevent programmers from using open source software

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The Constitutional Court decided to amend the Civil Code in terms of protecting the rights of the creators of computer programs. The reason was a dispute between programmer Anton Mamichev and his former employer, Swiss Veeam Software, which refused to recognize Mamichev’s rights to the program he created because of the use of open source software components in it. It turned out that the authors of software, if elements of open source software were used in it, could be denied protection of their rights.

The Constitutional Court decided to amend the Civil Code regarding the rights to computer programs

The Constitutional Court considered the complaint of the programmer Anton Mamichev for compliance with the Constitution of paragraph 3 of Article 1260 of the Civil Code (CC), concerning translations, other derivative works and composite works, in terms of recognition of copyright in computer programs. The court recognized the complaint as justified and decided to amend the Russian legislation.

Why the decision of the Constitutional Court is important for SPO

The Kachkin & Partners Law Office, which represents the interests of Anton Mamichev, considers the decision of the Constitutional Court important for the IT industry, since the contested eMM program used free software components (FOSS). “Earlier court decisions in this case made the use of open source software much more risky,” the bureau said in a statement. – Copyright holders of software that uses free components may be required to prove the legality of using each component when going to court to protect their own right to the program. In a situation where, for example, more than 100 such components are used (as in Microsoft Windows), this is practically impossible.”

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The Constitutional Court promises to protect the rights of programmers in Russia, even if they used free software components in their work

“Software developers using open source software components no longer need to fear that they will be denied protection of rights based on the lack of evidence of the legal use of third-party products,” Kachkin and Partners summed up. – Such developers will not have the impossible burden of proving the legality of the use of these components in situations where the developer seeks protection against infringers.

How a Russian programmer defended the rights to his own program

The dispute began because of Mamichev’s trial with his former employer Intervim and its parent company, the Swiss Veem Software Group. This company was created by Russians Ratmir Timashev and Andrey Baronovand in 2020 it was sold to the American venture fund Insight Partners.

Mamichev accused these structures of misappropriating the rights to the eLearning Metadata Manager (eMM) program he created for electronic courses and deleting information from this information about him.

Initially, the Primorsky District Court of St. Petersburg, where Mamichev applied, in 2019 recognized the claim as legitimate and prohibited the defendants from using the eMM program. It was also supposed to recover 21 million rubles from them.

However, the Court of Appeal overturned that decision. Then the court decided that the eMM program is a composite work, since it consists of library files that are part of web applications and are used to perform the most important functions of the program. Without these libraries, the web application will not work, the court noted. In addition, Mamichev offered to use this program on a paid basis, which is contrary to the terms of the standard public license, and the defendants acquired the right to use some of these programs.

Higher courts refused to review this decision, after which Mamichev appealed to the Constitutional Court. According to Mamichev’s arguments, it followed from the decisions of the courts that the author could be denied protection of the rights to the part of the work created by his creative work. At the same time, it is allowed to refuse to protect the rights to this work as such in connection with the use of objects of other persons, even if such persons did not declare a violation of their rights.

In addition, the challenged norm allows releasing participants in civil transactions from liability for violations, the commission of which has been proven, Mamichev pointed out. The program itself, in his opinion, is not a composite work and is not the result of a creative selection or arrangement of materials.

How to properly protect the rights of computer program authors

The Constitutional Court in its decision indicated: the rights to a computer program arise from its creator from the moment of creation of this program in an objective form as a result of creative work.

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“This procedure should apply to all computer programs, including composite works,” the court ruling says. – The use of objects to create a composite work requires the consent of the authors of the objects used. However, the creation of said composite work does not in itself deprive the authors of the objects used of any rights. At the same time, the exercise of copyright by the author of a computer program as a composite work is allowed only if the rights of the authors of the objects used to create this program are respected.

“Accordingly, the emergence of copyright of the author of a computer program as a composite work only if such consent is obtained would disproportionately affect the guarantees of protection of intellectual property, despite the fact that its further use is possible only if the named condition is met,” the ruling of the Constitutional Court says. “Thus, copyright arises from the mentioned moment and when, when creating a computer program as a composite work, its author did not respect the rights of the authors of the objects used to create it, in particular, their consent to such use of these objects was not obtained.”

“The refusal of the court to protect the copyright of the author of a computer program as a composite work on his claim against a person using this program in the absence of his consent, only on the grounds that the plaintiff himself is not entitled to use it, since he did not fulfill the condition on the observance of the rights by the author works used in the creation of the program, despite the fact that the latter did not apply for the protection of their rights in the established legal order, are not involved in specific legal proceedings in a different capacity, means the application by the court of measures in connection with the violation of the rights of the authors of the works used for public purposes related to the suppression violations in the field of intellectual property, concluded in the Constitutional Court. “However, the authors of the used works, by virtue of the principle of disposability inherent in civil law, civil and arbitration proceedings, have the right to determine for themselves whether to protect their violated right.”

What changes will need to be made to Russian legislation

In this regard, the Constitutional Court ordered the legislator to amend the current legal regulation in such a way that the balance of the author of a computer program, which is a composite work, and the rights of the authors of the objects used to create it, is ensured, while not excluding the protection of the property interests of the author of this computer programs, including by collecting compensation for violation by other persons of his exclusive right.

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Until these changes are made to the Civil Code, it should not be used as a basis for refusing to protect the right of authorship, the right of the author to the name of the creator of the computer program as a composite work and the exclusive right in terms of demanding the suppression of actions violating the author’s right in cases where the defendant also does not have the right to use such objects, as well as to refuse to protect in full the copyright to that part of a computer program as a composite work, which was created by the author of such a program and used in it as a composite work along with objects, the rights to which belong to other authors .

The court decisions in the Mamichev case should be reviewed, and in the part related to the implementation of the exclusive right to a computer program as a composite work in other ways, this should happen after the necessary changes are made to the current legal regulation.


Igor Korolev



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