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posted 9 years ago
In present conditions the area
of information technologies, particularly software development, is rapidly
evolving. By the number of certified specialists in IT and
volume of export of services for the software production, Ukraine ranks the
fourth place among the leading countries of the world.
The computer program began
to be protected as an object of copyright in the US in 1964 for the first time. Intellectual Property Rights includes: personal non
property rights of intellectual property and / or proprietary intellectual
property rights.
Personal non-property rights
of intellectual property on the object created by the order or in connection
with execution the employment contract belong to the employee or creator, who
created the object. Although in some cases, certain personal non-property
rights for intellectual property on an object may belong to legal person or
individual, in which the employee works or to the customer. Proprietary intellectual property rights on the object
created by the order or in connection with execution the employment contract, jointly
owned to the employee who created the object and the customer or legal person or
individual, in which he/she works, unless otherwise provided by contract (Art.
Art. 429, 430 Civil Code of Ukraine). The transfer of property rights of author
copyright agreement made with this list of property rights. The transfer of property rights of author is registered
by copyright contract with specified list of property rights.
Often IT companies conclude with the developers of IT
products certain contract in terms of which indicated that everything that
employee created on his working computer by using company resources and in
working hours – is considered the property of the company. And sometimes there are legal disputes arising just on
the grounds that it is difficult to prove who the real owner or the product is.
The Law of Ukraine «On
Copyright and Related Rights» defines a computer program as a set of instructions in
the form of words, numbers, codes, schemes, symbols or in any other form,
expressed in the form of computer-readable, which lead it in an action for a
particular purpose or result (this concept covers both the operating system and
application program expressed in output or object codes).
In the process of the rapid
development of relations in the field of IT, the issue of comprehensive
protection of computer programs, software and other IT products in Ukraine is
still insufficiently settled.
Primarily due to lack of a
comprehensive legal framework that would have protected software and computer
programs. According to the Law of Ukraine «On
Copyright and Related Rights» finished software product is protected by law as a
literary creation. But the algorithm, which usually is an important
software product, still remains unprotected. Such gaps in the legislation concern
not only Ukraine, but also many countries worldwide, including Russia, Japan
and the USA.
For example, in Japan, the
existence and effect of copyright is limited by boundaries of the Country in
which the product was created. The fact of the creation of an intellectual
property object does not entail recognition of any rights of the author to it
in other countries. Therefore, if the country does not participate in any
international agreements on copyright protection, the usage abroad this product
without the author’s consent and without payment of remuneration is considered
legitimate.
As for other problems, for
example, the Russian Federation, as most countries in Eastern Europe, is
literally drowning in software piracy. The citizens of this region don’t want
to pay for licensed. Unfortunately piracy is a problem not only in Eastern
European region but also in the US, causing millions of losses for computer
companies.
Regarding the problematic
issues of legislation it is that the copyright in this country is associated
primarily with a single subject. When in modern companies for the preparation
of a program are working several people that in order to be eligible to become
the coauthors they must prove their creative contribution to the creation of
software that is quite difficult for the person who developed only algorithm
for system code, not participating while in its development or in the design of
programs, etc. Also, there are some problems with the registration of computer
programs because registration of computer programs in the Russian Federation is
not compulsory, but in this way author has the ability to protect themselves
from encroaching on the object of his intellectual property, which will be
confirmed by a registration certificate.
Another equally important
problem is that IT products are often used illegally, namely
without a license that violates intellectual property rights to these products. However, for the time formation of an independent
Ukraine, there was adopted a number of normative legal acts that aimed on
settlement of the legitimate use of software and intellectual property rights
protection for computer software. Such normative
legal acts include: Directive of Cabinet
of Ministers of Ukraine «On Approval of the Concept software legalization and
control of illegal use of it» № 247-p of 15.05.2002, Directive of Cabinet of
Ministers of Ukraine «On approval of the legalization of computer programs in
the executive branch» № 253 of 04.03. 2004, the
Law of Ukraine «On the distribution of audiovisual works, phonograms,
computer applications, databases» № 1587-III of 23.03.2000, Directive of Cabinet
of Ministers of Ukraine «On state registration of copyright and agreements
concerning author right on work» № 1756 of 27.12.2001, Directive of Cabinet of
Ministers of Ukraine «On approval of the Procedure of use computer in the
executive branch» № 1433 of 10.09.2003, Order
of Ministry of Education and Science of Ukraine «On establishment
of the Register of producers and distributors of software» №8 of 08.01.2003.
Today, there are three real
and effective ways to protect software against unauthorized use:
1. to protect program source code by
using copyright;
2. to protect algorithms used in
programs as solutions to specific problems;
3. to protect name of the program.
The first is the copyright of a
work, such as a computer program, which arises from the moment of its
establishment and material expression and mandatory registration does not
required. Ukraine has a presumption of authorship according to which the author
is the person named as the author on the original or copy of the work. However,
for more guarantees you can register the copyright of the program and
agreements concerning copyright to this product. Obtaining protection of the
state for the software and secure confirmation of authorship occurs very
quickly, according to the standard procedure of registration of copyright. The
author receives a certificate, which allows him to dispose freely of his rights
for the software, database or another product or delegate authority to a third
party. In addition, it is possible to make your own data as a producer or
distributor of the software in the Register of producers and distributors of
the software. Distributing software is possible only with the marking control
marks obtained in the legally established procedure.
The second is the protection of algorithms used in the software. Similar
algorithms can be protected of external encroachments by receiving the patent. The algorithm, namely its essence and each stage is recorded and are made in
clear verbal form, and supported by appropriate block diagrams, charts, graphs, etc. If the algorithm has been tested on patentability, application may be
filed for the invention, and the author will receive a patent. This method is
considered the most consuming and lengthy, but if you want to insure yourself
against using your ideas by someone else, this method is considered the most
effective protection.
The third is recording of the trademark, name of the program or the site,
its domain name. This method of protection allows you to securely protect the
name of the program, database or website, as a mark for goods and services. It
also provides an opportunity to claim compensation from lawless use of the mark
by third parties.
So if you want that your software was protected and avoided any attack on
the side of other persons you should have sufficient protection for your IT
products.
Today, changes and additions to some legal documents are
being developed in Ukraine. Such addition to the legal framework will
significantly improve understanding of how individuals can protect their rights
and interests in the case of legal disputes.
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