Rus Articles Journal

What are you threatened by use of the counterfeit software with?

the Government assures us that Russia can join WTO in 2007. At the same time, one of obstacles in a way of our country to club of economically civilized states remain a question of protection of intellectual property rights.

Exists the steady myth that the intellectual property in Russia is protected worse than ever as pirates trade left disks at every turn, and databases of the Central Bank can be acquired in the subway at the similar price.

Really, many closed databases can be acquired on the Internet, however, in many respects this consequence not of legal nihilism of consumers, but scandalous negligence, it is possible even to tell negligence, owners.

Since disintegration of the Soviet Union passed already enough time that citizens and the enterprises got if not a habit then tendency to care for the property independently. Obligatory insurance of a motor vehicle liability is entered, more and more citizens use the COMPREHENSIVE INSURANCE and satellite systems of tracking, many apartments and office buildings are equipped with the alarm system of a call of militia and private security. Owners watch the country houses, establish iron doors in apartments, employ protection in offices but at the same time give attention to protection of the intangible assets very little.

Roots of this neglect reach for Soviet period when the state did not recognize not only intellectual, but also in general any private property. The widespread phrase " is very indicative; With things on an exit . Many years to people the confidence that their property it is possible to call only what can be carried away in hands took root. What here non-materiality ! And as the heavy heritage of the Soviet mode in the heads of people remained belief that their property will protect the state, militia, the Lord and a district committee of party. There is very indicative survey conducted by " Fund; Public opinion . According to data of this poll, 76% of Russians are sure that put with protection of the property rights and the rights of owners in Russia are badly, and only 6% are sure of the return, 18% of citizens find it difficult to answer this question.

This poll shows that owners in Russia are yet not quite ready to undertake burden of maintenance of the property. However only responsibility will allow them to count on receiving though any profit.

to earn enough money to the person should coordinate a large number of processes, to combine the resources which are at its disposal, to invent new schemes and mechanisms of generation of profit. In modern society it is possible to earn, without having any material values, but it is impossible to receive also ruble, neglecting values non-material. But that will form the basis of welfare of the person if he does not allow itself work to protect properly the rights for the intellectual property. Let`s consider in more detail what opportunities to it for this purpose are given by the Russian State.

The legislation of our country provides several types of responsibility for violation of intellectual property rights:

- grazhdansko - legal

- administrative

- criminal

we Will consider that threatens the violator of copyright of the computer program. We will conduct consideration in ascending order of severity of responsibility so, dear pirates, the most interesting to you - at the end of article.

Grazhdansko - legal responsibility.

We will consider the 49th article of the Law of the Russian Federation About copyright and allied rights of July 23, 1993 No. 5351 - 1, entitled Grazhdansko - legal ways of protection of copyright and allied rights

In the first paragraph of this article is established that the author, the owner of allied rights or other owner of exclusive rights has the right to protect the rights in the ways provided by the Civil code of the Russian Federation .

the Civil code of the Russian Federation provides compensation of the damage caused to the owner. The concrete extent of this damage can be determined, having considered the second paragraph of the specified article: owners of exclusive rights have the right to demand at the choice from the violator instead of compensation payment indemnification:

at the rate from 10 thousand rubles to 5 million rubles, determined by a discretion of court, arbitration court or arbitration court proceeding from nature of violation;

in a double size of cost of copies of works or objects of allied rights or in a double size of the value of the rights on use of works or objects of allied rights defined proceeding from the price which under comparable circumstances is usually raised for lawful use of works or objects of allied rights. Owners of exclusive rights have the right to demand

from the violator of payment of compensation for each case of unauthorzsed use of works or objects of allied rights or for the allowed offenses in general.

Compensation is subject to collecting at validity of the fact of an offense irrespective of existence or lack of losses

The last provision of this point is essentially important. It not only does not assign need to independently define damage to the owner, but also allows to collect from the violator compensation at the actual lack of losses. It means that it is enough single acquisition of a disk with the counterfeit software in order that compensation in favor of the owner in the sum to 5 000 000 rubles was collected from the violator.

of Provision of this article not only do the Law About copyright and allied rights efficient, but also give to owners the fine tool for settlement of the majority of disputes in a pre-judicial order. Under pressure of the possible judgment for the sum up to 5 million rubles the violator usually willingly goes for negotiations and business is allowed to mutual satisfaction of the parties.

Administrative responsibility

about administrative offenses (further the Administrative Code) contains In the Code of the Russian Federation article which is also allowing to make the violator responsible for illegal use of the computer programs. It is Art. 7. 12., entitled Violation of copyright and related rights, inventive and patent rights

According to item 1 to this article import, sale, delivery in hire or other illegal use of copies of works or soundtracks for commercialization in cases if copies of works or soundtracks are counterfeit according to the legislation of the Russian Federation on copyright and allied rights or on copies of works or soundtracks false information about their manufacturers, about places of their production, and also about owners of copyright and related rights is specified, and other violation of copyright and related rights for commercialization is equal -

attracts imposing of an administrative penalty on citizens in the amount of fifteen to twenty minimum wages with confiscation of counterfeit copies of works and soundtracks, and also the materials and the equipment used for their reproduction, and other tools of commission of an administrative offense;

on officials - from thirty to forty minimum wages with confiscation of counterfeit copies of works and soundtracks, and also the materials and the equipment used for their reproduction, and other tools of commission of an administrative offense;

on legal entities - from three hundred to four hundred minimum wages with confiscation of counterfeit copies of works and soundtracks, and also the materials and the equipment used for their reproduction, and other tools of commission of an administrative offense .

In this case the main corrective action can serve not the size of the imposed penalty, and the confiscation of counterfeit copies, and also the materials and the equipment used for their reproduction provided the ADMINISTRATIVE CODE (read - the computer). Thus, the violator not only will pay a penalty, but also will lose an opportunity to make a similar offense in the future.

We will pass to the most interesting - that is provided by the criminal legislation for such type of copyright infringement as use of the computer programs without license of the owner.

Criminal liability

Article 146 entitled Violation of copyright and related rights The Criminal Code of the Russian Federation (further - the criminal code of Russian Federation), provides in item 2, in particular, that:

2. Illegal use of objects of copyright or allied rights, and is equal the acquisition, storage, transportation of counterfeit copies of works or soundtracks for sale made in a large size, -

are punished by a penalty at the rate to two hundred thousand rubles or at a rate of a salary or other income of the convict for the period about eighteen months, or obligatory works for a period of hundred eighty till two hundred forty o`clock, or imprisonment for a period of up to two years.

(in an edition. The federal law from 08. 12. 2003 N 162 - Federal Law)

3. The acts provided by part of the second present article if they are made:

) group of persons by previous concert or organized group;

in) in especially large size;

of) the person with use of the official position, -

are punished by imprisonment for a period of up to six years with a penalty at the rate to five hundred thousand rubles or at a rate of a salary or other income of the convict for the period till three years or without that.

(in an edition. Federal laws from 08. 12. 2003 N 162 - Federal Law, from 09. 04. 2007 N 42 - Federal Law)

the Note. The acts provided by the present article admit perfect the large size if the cost of copies of works or soundtracks or a value of the rights on use of objects of copyright and allied rights exceed fifty thousand rubles, and in especially large size - two hundred fifty thousand rubles.

(in an edition. The federal law from 08. 12. 2003 N 162 - Federal Law)

It is undoubted, article 146 leaves to pirates considerable reason for pleasure. Responsibility on it comes on condition of validity of material harm to the owner in a size specified by article. It is worth remembering, however, that the cumulative cost of all counterfeit programs which owner is, for example, the Microsoft corporation on separately taken computer quite can exceed 50 000 rubles and then 2 years of punishment become quite real prospect for any individual. But devil is not so black as he is painted, misters pirates! On the first time earlier the suspended sentence is usually pronounced not to offenders!

So what can threaten the violator of copyright of the computer program in the worst case? An utter nonsense - 2 years of prison, a penalty to 5 million rubles, an administrative penalty (it, however, less, to only 15 minimum wage rates), but with confiscation of the tool of an offense. And all these opportunities are in hands of the lawful owner of intellectual property rights!

Beginning this article, I pursued two main objectives:

- to pay attention that the property, including intellectual, it not only is right, but also duties which are assigned and it is exclusive on the owner. Hopes on the kind uncle with a bludgeon it is not enough, ladies and gentlemen! It is time to hope for himself!

- to show that the Russian legislation provides very wide legal framework for prosecution of violators of intellectual property rights.

Perhaps, this short work will become one more blow to legal nihilism and neglect of citizens of Russia. I am sure, we move to civilized civil society, and protection of intellectual property rights this indispensable condition of creation of such society. Let`s understand that the property remains property irrespective of whether it is possible to touch it or not.