Overview Legal Framework for Activities in the Sphere of Information Technologies in the Russian Federation
Sep 16, 2002
- Protection of Software and Databases
- Chip Design
- Electronic Commerce
- Electronic Signatures
- Licensing and Certification
- Computer Crimes
- Electronic Russia 2002 - 2010
1. Protection of Software and DatabasesIn Russia, copyright is available for software and databases. The two principle acts governing the copyright protection of software and databases in the Russian Federation are the Law of the Russian Federation "On Copyright and Adjacent Rights" No. 5351-I of 9 July 1993 (hereinafter - the "Law on Copyright") and the Law of the Russian Federation "On Legal Protection of Computer Programs and Databases" No. 3523-I of 23 September 1992 (hereinafter - the "Law on Computer Programs").
GeneralSoftware products are protected as literary works and databases as compilations. Copyright protection is offered for software and databases either originally published in Russia or remaining unpublished but existing in some objective form in Russia.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 elect to register them at any time during the period of copyright protection in order to ensure the confirmation of his/her copyright. The copyright may be registered in the Russian Patent Office (ROSPATENT). The copyright protection is offered during the lifetime of the author and for 50 years after his/her death.
Moral Rights and Economic RightsThe author is an 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:
- right of recognition as the creator of the product;
- right to integrity;
- right to use the work under the author's name or a fictitious name;
- right to make public.
The author is granted the following economic rights:
- publishing right;
- reproduction right;
- distribution right;
- modification right, including translation;
- other economic rights.
Unlike the moral rights, which are personal to the author and non-transferable, the economic rights may be licensed or assigned.
Licensing and AssignmentAt the parties' discretion the licensing agreement may be registered with ROSPATENT. The license agreement must be in writing and must specify rights of use, term, territory, license fees, and other terms that the parties consider essential. Unless the term is specified the licensor may withdraw the license in five years with a six-month written notice. Sales of the software to end-users may be in the form of 'shrink-wrap' licenses.
The assignment of registered software or database is subject to mandatory registration with ROSPATENT.
The licensee is automatically granted the adaptation right and the right to make back-up 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 the interaction with other software, and not for creation of other computer programs.
Software Produced During the Course of EmploymentThe 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 InfringementIn the event of infringement the following legal remedies are available to the aggrieved party:
- recognition of rights before the court;
- restitution and termination of infringement (or acts which may potentially lead to infringement);
- damages, including lost profits;
- compensation from approximately USD 16,000 to USD 160,000 as may be determined by the court, in lieu of damages.
2. Chip Design
Protection of computer chip design in the Russian Federation is regulated by the Law of the Russian Federation "On Legal Protection of Chip Design" No. 3526-I of 23 September 1992. The chip design is protected, provided that it is original, i.e. 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 an individual whose creative efforts led to creation of the chip. The proprietor may use 'T' on the chip for notification of his/her proprietary rights.
Rights in Chip DesignThe 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 the same. The right to use the chip design may be assigned, licensed, and bequeathed.
Term of ProtectionThe rights in the chip design are protectable for 10 years after the earlier of: (i) the first use of the chip; or (ii) the registration of the chip design with ROSPATENT.
RegistrationRegistration 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 InfringementIn 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);
- damages, in accordance with the Russian civil laws.
3. InternetThere is no specific legislative act in the Russian Federation governing the relations connected with the use of the Internet. The information and data placed on the Internet are therefore regulated on the basis of existing Russian civil laws and legislation on copyright, trademarks, trade names, mass media, telecommunications, and unfair competition.
Providers of Internet services in the Russian Federation are considered providers of communication services and must act under licenses and certificates of compliance issued by the Ministry for Communications and Information.
Until recently domains of the second level of zone .ru have been administered by the Russian Scientific Research Institute for Development of Public Networks (RosNIIROS). Under the Resolution of the Government of the Russian Federation No. 533 of 17 July 2002 "On Amending and Supplementing the Regulations of the Ministry of the Russian Federation for Communications and Informatization", the powers of administration of domains of the second level within the .ru zone have been transferred to the Ministry for Communications and Informatization.
Case law on InternetDuring the last three years there have been several court cases connected with the infringement of rights in the Internet. However, decisions by the Russian courts of different levels and different regions do not always demonstrate clear understanding of the problems. Russian courts are prepared to give protection against 'cybersquatting' if the disputed domains contain the claimant's trade name (Mosfilm v RosNIIROS, Decision of the Moscow Arbitration Court No. A-40-22492/99-15-232 of 7 July 1999; Eastman Kodak Co. v Grundul, Decision of the Federal Arbitration Court of the Moscow District No. KA-A40/6520-00 of 25 January 2001). Also, several recent cases show that the registration of domains may also be challenged on the basis of trademark infringement (Baxter International v Unitair, Decision of the Moscow Arbitration Court No. A-40-12817/02-110-138 of 14 May 2002; Miele&C GmbH v Sters, Decision of the Moscow Arbitration Court No. A-4042141/01-26-19 of 10 January 2002). In all the above cases the claimant succeeded in obtaining a court order for re-registration of the disputed domains in his name. It is also important to note that documents placed on Internet are under protection of the Russian copyright laws (Media-Lingua v Rambler Internet Holding, Decision of the Moscow Arbitration Court No. A40 of 12 January 2001).
4. Electronic CommerceThere is no specific legislative act in the Russian Federation governing e-commerce. Such relationships are governed by the general provisions on sale of goods in the Civil Code; Federal Law "On Electronic Digital Signature" No. 1-FZ of 10 January 2002; Federal Law "On Information, Informatization and Protection of Information" No. 24-FZ of 20 February 1995. Powers for development and implementation of trade policy in the area of e-commerce are vested with the Ministry of Economic Development and Trade of the Russian Federation (Regulations on the Ministry of Economic Development and Trade, approved by Resolution of the Government of the Russian Federation No. 990 of 21 December 2000). The first reading of a draft law on e-commerce is currently being considered by the State Duma of the Russian Federation. The draft law is based on the approach of the UNCITRAL Model Law on Electronic Commerce.
5. Electronic SignaturesThe Federal Law of the Russian Federation "On Electronic Digital Signature" No. 1-FZ was enacted on 10 January 2002 (hereinafter - the "Law on Electronic Signature"). The electronic signature is deemed legally equal to the handwritten signature on a paper document when the standards and conditions set out in the Law on Electronic Signature are met. The electronic signature keys must only be created using certified electronic signature devices. The electronic signature key consists of a private key (confidential and restricted to its holder) and an open key (required for confirmation of the electronic signature, available to all users of the system and corresponding to the closed key). The keys are created and issued by authorization centers licensed by the Federal Agency for Governmental Communications (FAPSI). Authorization centers also maintain registers of holders of electronic keys. The open key is issued to its holder in the form of signature key certificate, indicating among other things the software used for electronic signature. Electronic keys are valid for a period set out in a contract between their holders and the authorization center. The Law on Electronic Signature allows for individual and corporate systems of electronic signatures. Foreign signature key certificates are recognized in the Russian Federation if legalized or apostilled.
6. Licensing and CertificationActivities which are only permitted to be carried out on the basis of a license are set out in the Federal Law "On Licensing of Certain Activities" No. 128-FZ of 8 August 2001 (hereinafter - the "Law on Licensing"). In accordance with the Law on Licensing, among others, the following activities must be licensed:
- development, manufacturing, and sale of encryption software and other software and hardware for the protection of confidential information- licensed by the State Technical Commission of the President of the Russian Federation;
- development, manufacturing, maintenance, distribution of, and services in the area of cryptographic devices - licensed by the Federal Agency for Governmental Communications (FAPSI);
- issuance of electronic signature key certificates, registration of holders of electronic signatures, services related to the use of electronic signatures, authentication of electronic signatures - licensed by FAPSI;
- development, manufacturing, distribution and acquisition of surveillance and interception devices - licensed by Federal Security Service (FSB);
- manufacture and distribution of products and services for the exposure of surveillance and interception devices - licensed by FSB and FAPSI;
- telecommunications services - licensed by the Ministry of the Russian Federation for Telecommunications and Informatization.
Certain software and hardware may only be used in the Russian Federation if certified by the respective Russian authorities:
- telecommunications software and hardware (certified by the Ministry for Telecommunications and Informatization);
- encryption devices (certified by FAPSI);
- electronic signature devices (certified by FAPSI);
- software for protection of confidential information (certified by FAPSI);
- information systems and databases used for servicing individuals and companies (certified by FAPSI).
7. Computer CrimesChapter 28 of the Russian Criminal Code is specifically devoted to computer crime and contains three prohibited criminal offences:
Article 272 "Unlawful Access to Computer Information" prohibits unlawful access to computer information if it caused deletion, blocking, modification or copying of any information, interference with the operation of an individual computer, computer system or computer network. The maximum penalty is five years imprisonment.
Article 273 "Creation, Use and Distribution of Harmful Computer Programs" makes it an offence to create software or modify existing software so that it knowingly results in deletion, blocking, modification or copying of any information or interference with the operation of an individual computer, computer system or computer network, and to use or distribute such programs or any material media with such programs. The maximum penalty is seven years imprisonment.
Under Article 274 "Violation of Rules of Operation of Computers, Computer Systems or Computer Networks" such violations constitute an offence if they lead to deletion, modification, or copying of confidential information protected by law and caused substantial harm. The maximum penalty is four years imprisonment.
There are also a number of other activities prohibited by the Russian Criminal Code, which may be applicable to computer crimes, such as: Article 137 "Infringement on Privacy", Article 138 "Infringement on Privacy of Mail, Telephone Communication, Postal, Telegraph and Other Communications", Article 183 "Unlawful Obtaining and Distribution of Information Which Constitute Commercial, Tax or Bank Secrets", and Article 146 "Infringement on Copyright and Adjourning Rights".
The Russian courts have considered quite a number of criminal cases on computer crime to date. The Russian Supreme Court, however, has not issued any comments or guidance on how such cases should be uniformly adjudicated. Responsibilities for investigation of computer crimes are vested with the specialized 'R-Department' of the Ministry of Internal Affairs of the Russian Federation.
8. Electronic Russia 2002 - 2010The Government of the Russian Federation has approved the federal program Electronic Russia 2002 - 2010 (Resolution of the Government of the Russian Federation No. 65 of 28 January 2002). The purpose of the Program is 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 successful implementation of the Program: formation of efficient IT legislation; increased interaction among governmental authorities based on IT; efficient and broad use of IT in social and economic spheres; IT-based training; further development of telecommunications network; formation of the unified information and telecommunication network for interaction among governmental authorities; and creation of conditions for development of e-commerce.
The legislative developments in the area of IT must be based on the following principles:
- unified information field;
- integration of Russia into the international system of information exchange;
- rights of individuals to receive information from public sources;
- publicity and openness in drafting legislation;
- publicity and openness in considering applications for licenses and certifications;
- equal business conditions and elimination of monopoly in the area of IT;
- formation of legal framework for the use of electronic documents in the state management and civil law relations;
- legal resolution of problems related to investigation of crimes in computer networks;
- simplified export of IT products;
- development of a unified complex of Russian IT legislation and bringing the Russian legislation into compliance with the international laws.
An Interdepartmental Committee has been created for the implementation of the Program. The chairman of the Committee is Mr. German Gref, the Minister of Economic Development and Trade, and the deputy chairman is Mr. Reiman, Minister for Communications and Informatization.
The Program envisages three consecutive stages.