Imagine a situation: you legally purchased a computer software program (hereinafter – “software”).
When testing it, you found that it cannot work correctly for any of the following reasons: you need to set special parameters not provided for by the program; or maybe your hardware does not accept the program. In general, reasoning can differ. You could not have foreseen that this software would not work. What should you do in this situation?
Usually you have no option to return the software just because it does not have individual settings customized exactly for your needs; you yourself should have been prudent whilst choosing the software. Purchasing a new program is not always possible, there may be no equivalents (a rare occurrence, but a potential one), or acquiring another software will cost extra money, and you have already spent a decent amount to buy the first one.
In the end, you decide to modify the program, adapt it for your needs yourself or with help from a third party specialist. We will describe a situation in which a person who lawfully purchased a program decided to modify it, but was faced with the fact that the owner of exclusive rights to the program found out about it, claimed that software modification is illegal and decided to oblige the offender to compensate the rightful owner.
A rightholder company sold a copy of its’ software to another person. This person turned to a technical specialist in order to improve said program. The rightholder considered that this person’s actions violated his exclusive rights by illegally reproducing and distributing the software. The rightholder then filed a lawsuit based on the mentioned arguments and claimed to recover a compensation of 500,000 rubles from the defendant.
The court of the first instance considered that there was indeed a violation, since any change or improvement in the program’s work could only be made with the rightholder’s consent. At the same time, the court noted that the defendant used the program solely for the purpose of adapting the operation of the equipment on which the software is installed.
The appeal court, among other things, indicated that the defendant had to negotiate a license agreement with the rightholder of the exclusive right in order to use the program.
The defendant did not agree with the decisions made by the courts and filed a complaint with the Court for Intellectual Property (hereinafter – IPC). In case No. A45-13248 / 2017, the Court for Intellectual Property stated the following:
the defendant is the person who lawfully acquired the program on the basis of an agreement with the plaintiff.
a person who has lawfully acquired a copy of the software has a right to carry out (any) actions necessary for the purpose of its functioning on the technical means of the user and take actions necessary for the functioning of such computer program or database in connection with its purpose, including fixation and storing in the memory of a computer (of one computer or of one user of a network) and also to conduct correction of clear errors, unless otherwise stipulated by the contract with the rightholder (item 1 of Article 1280 of the Civil Code of the Russian Federation). Also, these actions may be carried out without obtaining permission or paying additional fees to the rightholder.
this person has the right to study, research, or test the functioning of such computer program for the purpose of determining the ideas and principles underlying any element of the program (without rightholder’s consent and additional remunerations) (item 2 of Article 1280 of the Civil Code of the Russian Federation).
this person has the right without the consent of the rightholder and without payment of additional remuneration to reproduce and transform the object code into source text (to decompile the computer program) or to delegate to other persons to take these actions if they are necessary for achievement of the capability for interaction of a computer program independently developed by this person with other programs that may interact with the decompiled program, (item 3 article 1280 of the Civil Code of the Russian Federation).
Thus, the Court for Intellectual Property stressed that the court of first instance made an incorrect conclusion stating that carrying out certain actions with the program without gaining the rightholder’s permission (troubleshooting or improving program’s work via interference in the software operation thereof) is a violation of the rightholder’s rights.
Furthermore, the IPC pointed out that the court of appeal made the wrong conclusion that the defendant, when modifying the program, was to negotiate a licensing agreement with the rightholder.
In addition, the Court for Intellectual Property noted that defendant’s actions to improve the software (to adjust the program’s functionality to the location of the gardening company) are to be considered as software adaptation.
Software adaptation – making changes that are carried out solely as means to allow for program functioning via specific technical means of the user or under the control of specific user programs. The court pointed out that adaptation is not a violation of the exclusive right to the program.
It is also important to note that the program was adapted exclusively for the defendant’s personal purposes, that is, the legitimate purchaser of the program had no goal to adapt the program with its subsequent commercial implementation. The IPC emphasized that dissemination of a work (program) is understood as its sale or alienation of its original or copy. The fact that the defendant’s employee requested a specialist with a in order to make changes to the program via e-mail is not an alienation of the original or a copy, but only a request for advice and assistance with understanding of the software. Conclusion – in case you purchased a program and it does not work as intended, you can modify it yourself or with help of a specialist. The changes can be made under the following conditions: they are necessary to run the program on your hardware, to correct obvious errors, or to adjust operation of this program with other programs. The most important thing is that the changes are made to improve the program’s operation specifically for you, and not to improve the program, and subsequently implement it under version 2.0 (corrected and improved).
This article was partly drawn from materials gathered from the following websites: ipcmagazine.ru, garant.ru
Image taken from: yandex.ru