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The term "License" in the Russian legislation is used in two values:
The license – the sanction of competent state body to realization of the certain kind of activity (from among the kinds of activity which are a subject obligatory licensing);
The license – the sanction of the owner of exclusive rights to object of intellectual property (a work of art, the computer program, the invention, a trade mark) to use this object definitely.
Licenses in the first sense of the given term stand out on the basis of the Federal law « About licensing separate kinds of activity » and of some other federal laws. Use of licenses-sanctions for use of objects of intellectual property is adjusted by the legislation on intellectual property, in particular, laws of the Russian Federation « About the copyright and the adjacent rights », « About a right protection of the computer programs and databases », « About trade marks, service marks and names of places of an origin of the goods », the Patent law of the Russian Federation.
In present clause it will be a question of licenses-sanctions for use of the computer programs and the databases usually concluded in the form of bilateral agreements – license contracts.
Under the contract about granting exclusive rights to the computer program or a database (the license contract) the legal owner transfers other person – to the user – the right to use the given object in the image stipulated with the agreement. The volume of given competences can be various and is defined by the agreement of the parties. Unique restriction on volume of the transferred rights quite traditionally: the legal owner cannot transfer more the rights, than has itself. The last is especially actual, if the rights to object of intellectual property have arisen at the legal owner not directly (by virtue of creation of the program or a database), and have been received by it under the contract or on other bases.
In the legislation and an expert various kinds of licenses are developed. We shall more in detail stop on some of them.
1. Under the license agreement the exclusive or non-exclusive rights to the software (or, speaking more correctly, exclusive rights can be transferred on exclusive or non-exclusive conditions) can be transferred.
By transfer of the non-exclusive rights the legal owner gives to the user the right to use the computer program or a database level with by itself or other persons, also righteous the legal owner. The legal owner that does not lose an opportunity to use the software itself and to give the right of use of the given software to other persons.
By transfer of exclusive rights to the software the legal owner transfers the user exclusive rights available it to the software; thus the legal owner has not the right to carry out those competences which have been transferred to the user under the contract about transfer of exclusive rights, and also to transfer these powers to other persons.
2. Following division of licenses matters only with reference to licenses for the computer programs: the software can extend on a condition of the open code (OpenWare), or without such condition.
At distribution of the software on conditions of the open code the legal owner, giving to the user the right of use of the software, transfers also initial codes of the program. Thus, as a rule, the right to modify initial texts is given to the user also, processing and improving them.
Further use of the software products received as a result of such processing differs depending on a kind of the license. Now by practice it is developed two "families" of typical licenses for transfer of the software with the open code: GNU GPL and FreeBSD.
Their basic distinction consists in "heritability" of property of the open code: according to conditions of license GNU GPL, all the software products received as a result of processing or modernization of a program code distributed by such conditions, also can extend further only on conditions GNU GPL. It, on the one hand, promotes progress in development of the software, with another – breaks property interests of some developers who have enclosed serious means in modernization of a program code.
Бoльшую freedom in use of the transferred software is given with license Free BSD. On conditions of this license, the software products received as a result of processing of the given program code, can extend on any terms, including on возмездной to a basis.
Nevertheless, though licenses FreeBSD and GNU GPL also have received enough wide circulation, they are not the unique licenses for transfer of the software with the open code. By the legal owner own conditions of granting of the rights to such software, to a greater or lesser extent limiting rights of the user, if necessary, can be developed.
Licenses for distribution of the software, not containing conditions on opennesses of initial codes, are more various. As a rule, each legal owner develops own conditions of granting of the rights to software product, in the large companies-software developers even there are whole packages of the typical license agreements varied depending on software product or type of the user. Thus practically in all such licenses the interdiction on any updating of a program code if only such updating is not resolved directly in the legislation (for example, adaptation of the program) contains.
3. Widespread Enough division of types of the software depending on conditions of the license is their division by criterion возмездности. According to this criterion, the software shares on free-of-charge, is conditional-free-of-charge and commercial. In some cases allocate also the software distributed on special conditions.
The free-of-charge software (FreeWare) should not be confused to the "open" software (OpenWare): as бесплатность distribution does not mean an openness of initial codes, and the openness of initial codes does not entail gratuitous character of distribution.
By granting the software on a free-of-charge basis the legal owner some special conditions of use of the program usually stipulate. In particular, rather widespread condition is the interdiction on entering of any changes into a program code, except for directly resolved by the legislation. Besides a usual condition of the "free-of-charge" license is the clause on clearing the legal owner from any guarantees and the obligations connected with functioning of the software.
Conditionally-free distribution the software means, that the opportunity to familiarize with the program is given to the user, to test its opportunities at the decision of problems of the user. Thus or term of free-of-charge use of the program is limited, or not full-function version of the software is given. After acquaintance with the program the user has the right or to refuse its further use, or to pay software product and to get the rights to it in full.
Commercial distribution of the software assumes, that the user should pay programs, only then it receives the rights to them. Usually in the license agreements providing preliminary or subsequent payment for the transferred software, the greater volume of guarantees and obligations of the legal owner, rather than in licenses for free of charge distributed software contains.
In some cases the legal owners usually distributing the software on a commercial basis, give the rights free of charge, or is conditional-is free-of-charge. For example, on such conditions the software is given to educational establishments, libraries and other establishments of a science and culture, less often – to the state bodies. Usually agreements on granting the software contain a set of the additional conditions limiting in such cases (less often – expanding) the rights of users, and also providing limits of use of software products, for example, students of universities or visitors of library. In some cases on such « special conditions » the modified software specially intended for needs of establishments of a science, formation, culture, the state bodies is delivered by special image.
4. License agreements also can be subdivided depending on with whom, and in what purposes they consist. By this criterion it is possible to allocate license agreements with the end user (EULA – End User License Agreement), and the licenses providing an opportunity of completion of the software.
The typical form of the license agreement with the end user at the moment practice it is not developed, various legal owners use various, though also relatives under the maintenance license agreements. Typical license agreements of the large companies-software developers, however, have received enough wide circulation and frequently serve as the sample for license agreements of fineer firms (as, for example, Bogdanovich Software House).
License agreements with the end user usually provide minimally possible volume of the given rights, and the rights are never given on exclusive conditions. In such agreements limits of competences of the user, a guarantee of the legal owner are established also, mechanisms of technical support of use of the software are defined.
Unlike rather uniform license agreements with the end user, the license agreements providing an opportunity of completion of the program, can differ considerably.
First, such license agreements can enter into a package of the documents which are making out the attitudes дистрибьюторского or franchise of type. According to such agreements, the company-legal owner gives the companies-distributors the right to distribute software product, including, and with possible completion of a product under needs of the end user. The system of license agreements in this case will be two-level: the legal owner of software product gives the license as to the distributor, and (by means of the distributor) to the end user. The rights to the changes made by the distributor in software product, as a rule, are kept for the distributor and are given to them to the end user under corresponding license.
Secondly, the opportunity of completion of software product can contain in the license agreements, being a part of the partner contract. Such partner contract usually makes out attitudes on joint development of complex software products where the modules written by one developers, can be modified by others; thus each of developers keeps the rights to result of own creative efforts. The volume and limits of realization of the rights given by such agreement can differ depending on that, attitudes between developers are how much close.
At last, the opportunity of completion of software product is stipulated in so-called "free" licenses which examples are families GNU GPL considered above the license and FreeBSD. In this case the opportunity of the subsequent transfer of the rights to the software is not limited, moreover, in licenses of family GNU GPL absence of restrictions on transfer of the rights is obligatory.
5. In some cases, first of all, when it is a question of granting the rights to the software to the end user, it is possible to speak about the "connected" and "independently given" licenses (in English-speaking terminology – delivery to conditions OEM/BOX).
In the first case (OEM) the rights to the software are given by delivery of the software together with the computer equipment (so-called « the preestablished software »). Such licenses provide smaller license compensation (usually included in cost of the equipment), but thus provide smaller volume of competences of the user.
By independent ("box") delivery the software is given on the corresponding material carrier, accompanied by the documentation necessary for installation, adjustment and use of the program; the material carrier represents itself as a backup copy of the distribution kit. The volume of given competences in this case is a little bit more, besides probably granting under one license of an opportunity of use of the program for several computers (under condition of proportional increase in license compensation). By such deliveries « the wrapping license » is often used so-called: the user admits entered into the license agreement (printed on a wrapper) if it has opened a box with the distribution kit.
The kinds considered above and a version of license agreements (licenses) give to the legal owner a sufficient tooling for effective realization and protection of the rights to the software. The competent choice of the necessary type of the license, and in some case – formation of a necessary package of license agreements, is the important condition of activity on development and distribution of the software. Use of correctly made license agreement (or a package of license agreements) – a good way of increase of efficiency of business, and a way which should not be neglected. |
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