Rules and Standards of Proving the Use of a Computer Program as a Copyright Object
Anton G. Matveev · Вестник Пермского университета Юридические науки · 2024
Introduction: the global IT market is steadily growing. International law and national legal systems protect computer programs as copyright objects. Copyright protection in relation to these objects is associated with proving the fact of their use. Judicial practice reveals a number of problems related to the establishment of efficient, balanced, and at the same time fair rules and standards of proving the fact of using a computer program. Purpose: to determine the rules and standards of proving the use of a computer program as a copyright object. Methods: the method of formal logic, comparative‐legal, systematicstructural, and formal‐dogmatic methods. Results: the notions of an intellectual property object and the use of such an object should be understood in two senses: 1) from a day‐to‐day perspective; 2) in the lawbased context. The scope of the notion ‘use’ and the standards of proof of such use are interpreted differently in different intellectual property law institutions. The more technologically advanced the protected object is, the more formalized the procedure to establish the fact of its use should be. Conclusions: Russian judicial practice is on the path of developing the following rule: in general, it is legal to draw a conclusion about the use of a computer program when the evidence reliably reflects an analysis of its source code having been conducted. In the Russian legal system, two approaches have developed to resolving the issue of a computer program storage in computer memory: 1) the scope of the exclusive copyright includes the storage of a program in computer memory per se; 2) such storage is not included in the scope of the exclusive copyright. The second approach seems correct. It is based on a systematic and teleological interpretation of Part 4 of the Civil Code of the Russian Federation, on a historico‐political and teleological interpretation of the WIPO Copyright Treaty of December 20, 1996.