SPECIAL ASPECTS OF USING THE AFC TEST TO ESTABLISH SOFTWARE REFACTORING AND NON-LITERAL COPYING
Igor V. Chuvstvinov · Хозяйство и право · 2024
A key feature of the protection of works in copyright is the principle of protection of the form of the work and the refusal to protect the idea. This approach gives rise to the doctrine of the dichotomy of the idea and expression dichotomy, the task of which is to distinguish the protected form from the unprotected idea when nonliteral copying and creating derivative works. The solution of this problem determines the method of establishing the fact of illegal creation of a derivative work, and the qualification of illegal processing of the work. In order to qualify actions that are the elaboration of computer programs, the judicial practice of courts of common law jurisdictions has developed a special method for detecting processing. This method is called the AFC Test, which consists in analyzing the elements of computer programs and delineating protected elements and comparing the remaining elements for their creative independence. There are practically no works devoted to the study of this method in the Russian doctrine. In the article, the author analyzes the peculiarities of the AFC Test application existing in the practice of domestic and foreign courts and comes to the conclusion that this method is a fairly effective tool for resolving disputes related to the processing of computer programs.