|
 On March 12,
2014 the President of the Russian Federation signed Federal Law N 35 «On amendments to the Part I,
II and IV of the Civil Code of the Russian Federation and certain legislative acts
of the Russian Federation» containing amendments to the Part IV of the Civil Code related to the
use of open licenses (similar to Creative Commons and GNU FDL licenses) on the
territory.
The work on
preparation of the amendments was carried out since 2011 pursuant to paragraph
1 of the list of orders of the President of the Russian Federation dated May
31, 2011, which envisaged preparation of proposals on making amendments to the
civil legislation of the Russian Federation aimed at providing opportunity to
the authors to publish their works under the open licenses to general public. This
work was done within the Working Group on adaptation of international open licenses
to the national legislation of the Russian Federation and their use on the
territory of the Russian Federation established by the Ministry of Telecom and
Mass Communications of the Russian Federation (Order of the Ministry of Telecom and Mass
Communications ¹ 10 dated January 13, 2012). The Working Group included representatives of
the Private Law Research Center under the President of the RF, Supreme
Arbitration Court of the RF, Committee on Culture of the State Duma
(Parliament) of the RF, the Institute of the Information Society – Russian
Affiliate of the international organization "Creative Commons", legal firms in
the field of intellectual property ("Legal Bureau “Omega” LLC, law firm "SALANS"),
the Internet industry ( JSC "Rostelecom", RAEC , Mail.Ru Group), rightholders
(NP "National Federation of the Phonograms Producers"), users of open licenses
(NP "Wikimedia.ru", Russian Corporation of Nanotechnologies (RUSNANO), the
Association of Internet Publishers), mass media (Russian News Agency "RIA
Novosti"), etc. From the Institute of the Information Society Chairman of the
Board of Directors Dr. Yuri Hohlov, head of Directorate of the open Content
Development Alexander Evtyushkin, legal expert on the intellectual property
rights Svetlana Vorozhbit and Director of Department of International
Cooperation and Public Relations Louisa Rizmanova were included in the Working
Group.
In May 2012
the proposals elaborated by the Working Group were sent to the State Duma of
the Russian Federation to be included in the bill ¹ 47538-6/7 "On amendments to
the Parts I, II and IV of the Civil Code of the Russian Federation and certain
legislative acts of the Russian Federation", which was submitted to Duma by the
President of the RF in the beginning of April 2012. The bill had been considered
for almost two years and, at last, on February 25, 2014 it was adopted in the
second reading.
As for the
essence of amendments, paragraph 5, 1233 of the new version of Part IV of the Civil
Code of the RF states that the rightholder may declare publicly that he grants
any person with the right to free use the works of science, literature and art
or object of neighbouring rights, the rights for which belong to him, on the
conditions and for a period specified by the rightholder. Declaration can be published
on the official website of the federal executive authority, however, it is
unclear, which governmental authority will be responsible for the publication
of such statements. This paragraph enables the rightholders to set their own conditions
of use of works, rights for which belong to them, but it is not applied to the
open licenses.
Use of open licenses (similar
to the Creative Commons licenses) is regulated by the Article 12861 "Open
license for use of work of science, literature or art" of the Part IV of the
Civil Code of the RF. This Article stipulates that the author or other rightholder
can provide the user with the open (simple, non-exclusive) license to use his
work. Open license is a contract of adhesion, and the terms of such license
shall be publicly available, and placed in such way that the user (licensee)
could read them before using the work.
Open license applies to
computer programs and databases, if otherwise is not specified, during the term
of the exclusive rights, and for the other types of works - within five years.
If the territory, on which the use of the relevant work is permitted, is not
specified in the open license, the work can be used worldwide.
In accordance with the new
version of the Civil Code, the acceptance of an open license conditions by
performing the actions specified in the license (for instance, the adoption of
the license conditions by “clicking” on the appropriate button online) is
equivalent to the written form of a contract (Article 438). This means that the
open licenses placed on the Internet are in legal force. Use of open licenses
similar to the Creative Commons ShareAlike (copyleft) licenses and licenses
permitting distribution of the derivative works (copyleft) works (paragraph 2
of Article 437) is also regulated.
If the user has violated
the conditions of an open license, the author or rightholder may unilaterally
withdraw from the contract (paragraph 3, Article 450). If the exclusive right
to work is violated by the unlawful actions related to provision or use of the
open license, the rightholder or author is authorized to require the
application of measures on protection of exclusive rights against the violator
in accordance with Article 1252 of the Civil Code of the Russian Federation.
In conclusion it should be
noted that the above-mentioned amendments to the Civil Code shall enter into
force on October 1, 2014. |
