国内政策【切换】 国际政策

2022 年 6 月 27 日第 26 号俄罗斯联邦立法大会，艺术。4584(英文版）1

In the name of the Russian Federation

RESOLUTION

OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

on the case of checking the constitutionality of paragraph 3 of Article 1260 of the Civil Code of the Russian Federation in connection with the complaint of citizen A.E. Mamichev

city of St. Petersburg June 16, 2022

The Constitutional Court of the Russian Federation composed of Chairman V.D. Zorkin, judges K.V. Aranovsky, G.A. Gadzhiev, L.M. Zharkova, S.M. Kazantsev, S.D. Knyazev, A.N. Kokotov, L.O. Krasavchikova, S.P. Mavrina, N.V. Melnikova,

guided by Article 125 (clause "a" of Part 4) of the Constitution of the Russian Federation, Clause 3 of Part One, Parts Three and Four of Article 3, Part One of Article 21, Articles 36, 471 , 74, 86, 96, 97 and 99 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation" ,

considered at the meeting without holding a hearing the case on checking the constitutionality of paragraph 3 of Article 1260 of the Civil Code of the Russian Federation .

The reason for the consideration of the case was the complaint of citizen A.E. Mamichev. The basis for the consideration of the case was the revealed uncertainty as to whether the legal provision disputed by the applicant complies with the Constitution of the Russian Federation.

Having heard the report of the judge-rapporteur A.N. Kokotov, having examined the submitted documents and other materials, the Constitutional Court of the Russian Federation

installed:

1. In accordance with paragraph 3 of Article 1260 of the Civil Code of the Russian Federation , a translator, compiler or other author of a derivative or composite work shall exercise his copyrights subject to the rights of the authors of the works used to create the derivative or composite work.

1.1. The applicant in the present case, citizen A.E. Mamichev, applied to the court with a number of demands against Intervim LLC (the former employer of the plaintiff) and Wiam Software Group GmbH, including recognition of the right of authorship, the right of the author to the name and the exclusive right on the program for an electronic computer (computer program) "eLearning Metadata Manager" (hereinafter also referred to as "eMM"), declaring the removal of A.E. Mamichev's copyright information from the specified program as a violation, collecting compensation for violation of the exclusive right. In support of the claim, the applicant referred to the fact that the defendants, without his consent and without attribution, use, distribute and copy the computer program "eMM", the author of which he is. The controversial program was characterized by A.E.

By the decision of the Primorsky District Court of St. Petersburg dated June 11, 2019, the claims were partially satisfied. The court recognized A.E. Mamichev as the author of the eMM computer program, recognized him as the exclusive right to use it, recovering in his favor from Wiam Software Group GmbH as compensation for the use of this program with the copyright protection sign removed 1,571,845 4 rubles, and as compensation for providing access to its copy to third parties - 17,638,200 rubles. In addition, the court exacted 2,259,359 rubles in favor of A.E. and forbade "Intervim" LLC and "Wiam Software Group GmbH" to use the "eMM" computer program in any way,

By an appeal ruling of the Judicial Collegium for Civil Cases of the St. Petersburg City Court dated January 24, 2020, the decision of the court of first instance was canceled, and the requirements of A.E. Mamichev were denied. The appellate court considered the disputed program to be a composite work, stating that it consists of library files that are part of the web application and are used to perform its most important functions, and that the web application will not work without these libraries. As noted in the appeal ruling, the plaintiff, having used some programs when creating his computer program "eMM", offered to use the latter on a paid basis, which is contrary to the terms of the standard public license; in addition, the right to use some of these programs was acquired by the defendants. The court emphasized that the plaintiff has not proven that he has the right to use software products, the rights to which belong to other copyright holders, and to create a controversial program based on such programs. Referring to the provisions of civil law and the clarifications contained in paragraph 88 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 23, 2019 No. 10 "On the application of part four of the Civil Code of the Russian Federation", the court indicated that A.E. Mamichev should be denied protection of copyright rights. At the same time, the court rejected the arguments of OOO Intervim that the disputed computer program was an employee's work. Referring to the provisions of civil law and the clarifications contained in paragraph 88 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 23, 2019 No. 10 "On the application of part four of the Civil Code of the Russian Federation", the court indicated that A.E. Mamichev should be denied protection of copyright rights. At the same time, the court rejected the arguments of OOO Intervim that the disputed computer program was an employee's work. Referring to the provisions of civil law and the clarifications contained in paragraph 88 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 23, 2019 No. 10 "On the application of part four of the Civil Code of the Russian Federation", the court indicated that A.E. Mamichev should be denied protection of copyright rights. At the same time, the court rejected the arguments of OOO Intervim that the disputed computer program was an employee's work.

The transfer of the cassation complaint against this appeal ruling and the ruling of the Judicial Collegium for Civil Cases of the Third Court of Cassation of General Jurisdiction dated August 31, 2020, by which it was left unchanged, for consideration at the judicial session of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation was refused (determination Judge of the Supreme Court of the Russian Federation dated January 22, 2021). The Deputy Chairman of the Supreme Court of the Russian Federation notified the applicant that there were no grounds to disagree with this ruling of the judge of the Supreme Court of the Russian Federation (letter dated April 7, 2021).

According to A.E. Mamichev, the contested legal provision is contrary to Articles 34 (Part 1), 44 (Part 1), 45 (Part 1) and 46 (Part 1) of the Constitution of the Russian Federation to the extent that it, if used in a work objects, the rights to which belong to other persons and the legality of the use of which has not been proven, allows the author to refuse to protect the rights to the part of the work created by his creative work and allows the refusal to protect the rights to this work as such in connection with the use of these objects, despite the fact that such persons did not report any violation of their rights. In addition, the Applicant points out that the Contested Norm allows releasing participants in civil transactions from liability for a proven violation. A.E.

1.2. By virtue of Articles 36, 74, 96 and 97 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation"The Constitutional Court of the Russian Federation accepts for consideration a complaint about the violation of constitutional rights and freedoms by a normative act, if it comes to the conclusion that there are signs of their violation as a result of the application of the disputed act in a specific case involving a citizen, as well as uncertainty as to whether the disputed act of the Constitution of the Russian Federation. He decides only on the subject indicated in the complaint, and only in relation to that part of the act, the constitutionality of which is questioned, assessing both the literal meaning of the provisions in question, and the meaning given to them by official and other interpretations, including in decisions on a specific case. , or established law enforcement practice, based on their place in the system of legal norms, without being bound by the grounds and arguments set forth in the complaint.

Thus, paragraph 3 of Article 1260 of the Civil Code of the Russian Federation is the subject of consideration by the Constitutional Court of the Russian Federation in the present case to the extent that, in the system of current legal regulation, on its basis, the court decides on the protection of copyrights of the creator of a computer program (rights of authorship, rights the name of the author, the exclusive right to this program) in a dispute with a person using the specified program without his consent, if the court has established that the named program is a composite work created without respecting the rights of the authors (copyright holders) of the computer programs used to create it .

2. The Constitution of the Russian Federation stipulates that everyone is guaranteed freedom of literary, artistic, scientific, technical and other forms of creativity and teaching; intellectual property is protected by law (Article 44, part 1). Everyone has the right to free use of their abilities and property for entrepreneurial and other economic activities not prohibited by law (Article 34, Part 1), including those related to the use of the results of creative activity. These rights, along with other human and civil rights and freedoms, are recognized and guaranteed in the Russian Federation in accordance with the generally recognized principles and norms of international law and in accordance with the Constitution of the Russian Federation (Article 17, part 1).

Guaranteeing state, including judicial, protection of the rights and freedoms of man and citizen, the Constitution of the Russian Federation establishes at the same time that their implementation must not violate the rights and freedoms of other persons and that the rights and freedoms of man and citizen may be limited by federal law only in that to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of other persons, to ensure the defense of the country and the security of the state (Article 17, part 3; Article 45, part 1; Article 46, part 1; Article 55, part 3).

The above provisions form the basis of the state policy in the field of protection of intellectual property, the legal regulation of which is under the jurisdiction of the Russian Federation (Article 71, paragraph "o", of the