Software Licensing

The exclusive right to the result of intellectual activity initially arises from its author. This right can be transferred by the author to another person under the contract. The copyright holder may at his discretion allow or prohibit other persons from using the result of intellectual activity or means of individualization (non-exclusive right to a work).

A non-exclusive right may be granted on a temporary or permanent basis. Terms of use are described in the license agreement. The absence of prohibition is not considered consent (permission).

Software - an object of copyright, the use of which requires a license. The license provides the right to install, use, access, display, run or any other interaction with the software. The scope of rights and terms of use are described in the relevant license agreements.

Licenses by type can be divided into the following groups:

• Commercial license - the most commonly used commercial giants Microsoft, SAP, Oracle, Corel Corporation, Autodesk, etc.
• Free license (Freeware) is the most beloved license in the Russian Federation. Allows free and unlimited use of the software. No monetary obligations.
• Free software (open source). The difference between freeware and open source, even if these are the same in terms of program functionality, in the future fate of the products. Freeware die in years - family, children, new projects that are paid for. Free programs (Open-source) - die less often.
• Trial programs (Shareware) - conditionally free software. Paid programs that are allowed to be used for free.
• Exotic software licenses are complex formalizable requirements of copyright holders. For example - Free for residents of the former USSR.

Chronicle

2023

The Ministry of Digital Development of the Russian Federation is preparing a list of foreign software for compulsory licensing

The Ministry of Digital Development, Communications and Mass Media of the Russian Federation is preparing a list of foreign software for compulsory licensing. This was reported on August 10, 2023 in the public and state organization "Russian Center for the Circulation of Rights to the Results of Creative Activity" (RCIS).

According to her, the Ministry of Digital Development has already prepared a draft amendment to the current legislation to regulate the use of goods, intellectual property, including software, without the consent of copyright holders. Objects from this list will be able to use Russian companies and organizations under certain conditions, subject to payment of appropriate compensation to copyright holders. It is assumed that the government will determine the federal authorities that will be able to make their proposals for the formation of the list. Prepared document by August 10, 2023.

Ministry of Digital Development is preparing a list of foreign software for compulsory licensing

The task of the amendments is to enable the temporary use of foreign software, which the company cannot do without, and a phased transition to domestic products. At the same time, not encouraging piracy and directing funds from the use of foreign software for the development of Russian products, - explained in the Ministry of Digital Development. Under certain conditions, we are forced to legalize the use of foreign software for the time that we need competitive Russian analogues to appear and companies can switch to them... It will not be possible to leave the gray zone here, - said the head of the Ministry of Digital Development Maksut Shadayev at the annual meeting of the association "Domestic Software" in April 2023.

By August 10, 2023, to pay for foreign software, the business is transferring funds to special accounts. Some of these funds go to the issuance of preferential loans to Russian developers.^[1]

For foreign software, 2 licensing mechanisms are being worked out in Russia

At the end of January 2023, it became known that two licensing mechanisms are being worked out for foreign software in Russia - for former software licensees and for new ones. An updated version of the bill on forced licensing of copyright and related rights, which also includes software, is planned to be submitted to the State Duma in early February 2023.

According to Vedomosti, by the end of January 2023, users who have bought temporary licenses or subscriptions to foreign software are faced with the impossibility of renewing them. If they continue to use the products, they automatically fall into the category of "pirates," and for this they may face liability, up to criminal.

Russian companies will seek rights to use foreign software through the courts

Before the departure of foreign copyright holders from Russia, the order was as follows: the Russian company entered into an agreement with the copyright holder and directly transferred money to him, Dmitry Kuznetsov, a deputy from the Just Russia for Truth faction, told the newspaper. But in the current situation, in connection with the ban on cross-border operations and the refusal of foreign suppliers to work in Russia, there was a need to develop two mechanisms for forced licensing.

The first - simplified - the mechanism will be intended for those users who already had a license, the deputy says. In this case, the Russian company must go to the Russian court and inform that the copyright holder has left the country, and there is no Russian analogue of its products, Kuznetsov explains. Therefore, the company needs permission to continue using such software without a license, he notes.

The second is more complex - the mechanism is intended for objects of copyright and related rights that were not previously used and are not available in Russia, Kuznetsov continues. In such a situation, the Russian company must go to court with a justification for the need to use a foreign product. The deputy clarified that if the plaintiff wins the dispute, he will be able to use this product without the permission of the copyright holder, and the money will begin to be credited to the special account "O" (ruble accounts in a number of banks provided for by the presidential decree for settlement with foreign companies under sanctions pressure).

According to Kuznetsov, in which mechanism the software will fall - in the first or both, depends on the position of the Ministry of Digital Development.^[2]

2022

The number of software licensing lawsuits in Russia increased by 65%

The number of licensing trials software of the Russian Federation in 2022 jumped by 65%. This figure is reflected in the company's study, the RTM Group results of which were released in early May 2023.

The observed trend, as stated in the report at the disposal of RIA Novosti, is associated with the current geopolitical situation and the departure of a number of large foreign software suppliers from the Russian market. Legal proceedings are initiated for various reasons. In particular, domestic companies file lawsuits against foreign software developers in cases where it is impossible to renew the purchased license, continue to use the purchased license or pay for a new one. In such cases, defendants are usually subject to claims for compensation.

The number of software licensing courts increased by 65%

In addition, integrators and distributors who distributed the products of companies that left Russia become participants in litigation on software licensing. Often claims are filed against Russian representative offices of foreign suppliers. Another reason for the proceedings is the distribution of counterfeit software on the Russian market, which does not require the purchase of licenses and keys: in such cases, not only civil liability, but also criminal liability is provided. Fines in such cases often range from 2 to 5 million rubles.

Currently, the number of registrations of Russian software products in the register of domestic software is growing, which is then deposited in Rospatent. This is not only a necessary condition for obtaining benefits, but also confirmation of rights to software in disputes, - said the manager of RTM Group Yevgeny Tsarev.

In general, experts from RTM Group believe that the number of litigation over software licensing will at least double when there is a legal mechanism to use foreign software without the consent of the copyright holder by a court decision.^[3]

The Ministry of Digital Development is going to forcibly license foreign software, the developers of which have stopped working in Russia

On December 29, 2022, it became known about the plans of the Ministry of Digital Development of the Russian Federation to forcibly license foreign software, the developers of which stopped working in Russia.

The Ministry of Digital Development is preparing a bill on forced licensing of foreign software, the developers of which left Russia

As Kommersant writes with reference to a letter from Dmitry Nikitin, director of the IT industry development department of the Ministry of Digital Development, sent to the Public Consumer Initiative, in the context of the departure of foreign software developers from the Russian Federation, the issue of its use "becomes particularly relevant and requires regulation." In this regard, the government "is working on the issue of determining special conditions for the use of foreign software, in respect of which it is impossible for bona fide Russian users to fulfill their existing contractual obligations," the document says, excerpts from which the publication cites.

Sources of the newspaper claim that the initiative is aimed at "decriminalizing" the illegal use of foreign software. The bill implies that bona fide Russian users will transfer the fee for using the software to a special account. From it, copyright holders will be able to receive funds "on demand."

One of the IT associations confirmed to Kommersant that the Ministry of Digital Development discussing the prospects for forced licensing of software with them and other associations. According to a Kommersant source close to Ministry of Digital Development, the initiative "is being worked out in a closed mode from the market."

The head of the department, Maksut Shadayev, said on December 28, 2022 that "conditions are needed under which business could use foreign software."

"Decriminalization" of illegal use of software will significantly slow down the pace of import substitution of software and damage the entire Russian IT market, said Pavel Kalyakin, general director of MyOffice. And according to the head of Datana, Vladimir Zakharov, the implementation of the initiative will be, "in fact, just waiting for the return of copyright holders to the country."^[4]

See also

• Intellectual property (patents)
• Copyright on the Internet
• Computer law
• All-Russian Intellectual Property Organization (WIPO)
• Stop Online Piracy Act
• Pirated Software in Russia and the World (Unlicensed Software)
• Software Asset Management (SAM)

Notes