Transfer of rights to use software. The organization acquired non-exclusive rights to the software under a license agreement

Computer programs (software products, software) refer to the results of intellectual activity and equivalent means of individualization of legal entities, goods, works, services and enterprises (intellectual property). The legislator defines a Computer Program as a set of data and commands presented in an objective form, intended for the operation of a computer and other computer devices in order to obtain a certain result, including preparatory materials obtained during the development of a computer program, and the audiovisual displays generated by it.

The law provides for legal protection of computer programs as works of literature. I am inclined to assume that this is due to their original beginning. Any software product is a program code (source text and object code), that is, a set of characters.

The transfer of rights to software, like any object that is not withdrawn from circulation or not limited in circulation, is carried out on the basis of an agreement.

Before the appearance of part four of the Civil Code of the Russian Federation, there was no general definition of an agreement on the alienation of exclusive rights and a license agreement. Previously, an agreement on the transfer of rights to computer programs determined the subject matter - the volume of transferred rights, methods and limits of their use. The essential terms of such an agreement were its duration and the amount of remuneration. This agreement was independent and separated from other types of civil contracts. Analysis of Part 4 of the Civil Code makes it possible to assume that the basis of the proposed agreement is an agreement on the use of a patented object (license agreement), which was both exclusive and non-exclusive.

It should be noted that, unlike previously existing legislation, Part 4 of the Civil Code of the Russian Federation allows for a number of ways to transfer rights to software products. Under an agreement on the alienation of an exclusive right, one party (the copyright holder) transfers or undertakes to transfer its exclusive right to the result of intellectual activity or to a means of individualization in full to the other party (purchaser). This agreement is concluded in writing and is subject to compensation. An agreement that does not directly indicate that exclusive rights are transferred in full is considered a license agreement, which is its main difference. Such an agreement does not provide for a period or any territorial restrictions.

Of particular interest is the license agreement from the point of view of the transfer of rights to software products on a fee basis. Most vendors, in particular Microsoft and Kaspersky, only exercise the right to use the results of their intellectual activity. In this regard, the difference between a license agreement and an agreement on the alienation of exclusive rights is the granting of the right to use the result of intellectual activity, i.e. alienation of rights does not occur, and the copyright holder remains the same. Accordingly, the use of rights is carried out within the limits of those rights and in the ways that the copyright holder provides in the license agreement.

Under a license agreement, one party - the holder of the exclusive right to a result of intellectual activity or a means of individualization (licensor) grants or undertakes to provide the other party (licensee) with the right to use such a result or such means within the limits provided for by the agreement. The peculiarity of transferred rights is that their actions can be limited both by the territory of validity and by the period. It should be noted that the period for which the license agreement is concluded cannot exceed the duration of the exclusive right to the result of intellectual activity or to a means of individualization. In addition, it is necessary to pay attention to the following that the user has the right to exercise the rights granted to him only in those ways that are directly defined by the license agreement, since it is presumed that what is not specified in the license agreement is not granted to the licensee.

A license agreement can be of two types: a simple (non-exclusive) license - when the right to use the result of intellectual activity or a means of individualization is transferred to the licensee, while the licensor retains the right to issue licenses to other persons; and an exclusive license - when the right is transferred without the licensor retaining the right to issue licenses to other persons. The novelty of Part 4 of the Civil Code of the Russian Federation is the obligation of the licensee to submit reports to the licensor on the use of the result of his intellectual activity.

Part four of the Civil Code of the Russian Federation provides for the possibility of concluding a sublicense agreement, according to which the licensee is granted the right to use the results of intellectual activity.

To conclude a sublicense agreement, it is necessary to obtain the written consent of the licensor; This consent may also be expressed in the license agreement itself. The rights and methods of use that can be transferred under a sublicense agreement cannot exceed those granted under the license agreement. A sublicense agreement concluded for a period exceeding the validity period of the license agreement is considered concluded for the duration of the license agreement.

Also, the transfer of rights to software can be carried out by concluding a license agreement granting the right to use the work. Under such an agreement, one party - the author or other copyright holder (licensor) grants or undertakes to provide the other party (licensee) with the right to use this work within the limits established by the agreement. The agreement can be concluded by each user joining a license agreement, the terms of which are set out on the purchased copy or on the packaging of this copy. The user's consent to the terms of such a license agreement is expressed at the beginning of using the software product (acceptance of the License Agreement).

In a non-contractual manner, the right to use the software may arise in the event of universal succession - reorganization of a legal entity or inheritance. According to Art. 58 of the Civil Code of the Russian Federation, upon merger or incorporation of legal entities, rights and obligations are transferred to the newly emerged legal entity in accordance with the transfer act. When dividing and separating a legal entity, its rights and obligations are transferred in accordance with the separation balance sheet. When a legal entity of one type is transformed into a legal entity of another type (change of organizational and legal form), the rights and obligations of the reorganized legal entity are transferred to the newly emerged legal entity in accordance with the transfer deed.

I would also like to note that the proposed list of ways for third parties to obtain exclusive rights to use software products is not exhaustive. In accordance with Art. 1233 of the Civil Code of the Russian Federation, the copyright holder can dispose of the exclusive rights to the results of intellectual activity that belong to him. In this case, based on the provisions of Art. 209 of the Civil Code of the Russian Federation, the copyright holder can also carry out other actions, such as, for example, a pledge.

It should be noted that in the case of transferring rights to the results of their intellectual activity, large vendors, as a rule, resort to the services of distributors and dealers. That is, they do not sell directly and do not have any direct relationship with the end user, other than providing technical support services.

Separately, I would like to consider the innovations in tax legislation that characterize the features of the transfer of rights to computer programs from the point of view of the Tax Code.

In connection with the entry into force of the Federal Law “On Amendments to Certain Legislative Acts of the Russian Federation Regarding the Formation of Favorable Tax Conditions for Financing Innovation Activities”, from January 1, 2008, persons engaged in scientific, development and other innovative activities are provided a number of additional tax benefits.

This provision establishes a list of goods, works, and services, the sale of which is not subject to taxation on the territory of the Russian Federation. According to the above norm, clause 2 of Art. 149 of the Tax Code of the Russian Federation is supplemented by paragraphs. 26, through which activities for the implementation of exclusive rights to inventions, utility models, industrial designs, programs for electronic computers, databases, topologies of integrated circuits, production secrets (know-how), as well as rights to use the specified results of intellectual activity on the basis license agreement is exempt from VAT. As clearly follows from the provisions of the Tax Code, this agreement must meet one single criterion - meet all the criteria specified for the License Agreement.

Taking into account the above facts, it should be noted that software sellers (resellers) may face problems when applying new tax laws. After all, the tax benefit set out in paragraphs. 26 clause 2 art. 149 of the Tax Code of the Russian Federation applies only to the implementation of exclusive rights to software under agreements on the alienation of exclusive rights and to the implementation of rights to use these objects under license agreements. In this case, the question arises of the feasibility of selling boxed versions of the software, which are sold as goods under supply or sales contracts with the obligatory payment of value added tax.

On the one hand, transactions involving the transfer of rights when selling software products in commercial packaging are subject to VAT, unless at the time of sale a license agreement was concluded with the copyright holder in writing. But on the other hand, only the end user directly benefits from the use of software as a result of intellectual activity.

However, according to the Tax Code of the Russian Federation, the institutions, concepts and terms of civil, family and other branches of legislation of the Russian Federation used in the Tax Code of the Russian Federation are applied in the meaning in which they are used in these branches of legislation, unless otherwise provided by the Tax Code of the Russian Federation.

Accordingly, we can conclude: if software or rights to software are provided through a License Agreement, they are provided with a tax benefit. If a supply or purchase and sale agreement is used, then the collection of value added tax is required.

A letter from the Ministry of Finance of the Russian Federation provided final clarity on this issue. It states that “in the case of the application of value added tax when an organization carries out activities to distribute software products through a network of resellers (dealers, distributors) with the transfer of non-exclusive rights from the manufacturing organization through a chain of intermediaries to the end consumer on the basis of licensing agreements concluded by them, then, in accordance with Federal Law No. 195-FZ of July 19, 2007, such transactions are not subject to value added tax.”

Art. 1238 of the Civil Code of the Russian Federation, - “Rossiyskaya Gazeta”, N 289, 12.22.2006

about the author

Dmitry Yankovenko, Candidate of Legal Sciences, General Director of the Sintez company, partner of QCS and Alexander Golev & Partners. Practicing lawyer, auditor and consultant, author of numerous scientific articles in the field of copyright and exclusive law, co-author of SAM trainings.

Microsoft Certified Specialist (MCTS) in Software Asset Management and Software Licensing. Rights to products are: exclusive

and non-exclusive. Exclusive right

- this is the right when no person, except the copyright holder, can use the software without the appropriate permission (license), except in cases of free distribution of software clearly stipulated by the Law of Ukraine “On Copyright and Related Rights”. Non-exclusive right - this is the right to use the software in the manner specified in the copyright agreement for the issuance of a non-exclusive license (for example, distribution of software), on an equal basis with other persons holding a non-exclusive license. Therefore, the peculiarity of a non-exclusive license is that the license for use

Software in any specific way can be issued (i.e., conclude a copyright license agreement) only by the holder of an exclusive license for this method of using the software, for example, the author.
The author or other copyright holder has the exclusive right to permit or prohibit:
1. Reproduction (replication) of software. Right(replication) software is the production of one or more copies of software in any material form (on laser disks, magnetic disks, floppy disks, etc.), as well as recording of software for temporary or permanent storage, commercial or non-commercial distribution in electronic (including digital), optical or other machine-readable form. An instance is the result of some kind of software reproduction.

2. Using the software for your own needs.
1. Reproduction (replication) of software. - this is the right to use the software in the manner specified in the copyright agreement for the issuance of a non-exclusive license (for example, distribution of software), on an equal basis with other persons holding a non-exclusive license. Therefore, the peculiarity of a non-exclusive license is that the license Software for your own needs is the exploitation of the useful qualities of software for your own needs.

3. Software distribution.
1. Reproduction (replication) of software. for distribution Software is the provision of access to software embodied in any material form via network or other means by:
Sales;
Renting;
Renting;
Donations;
Mena;
Providing for temporary free use;
Contributions to the authorized capital of commercial organizations;
Alienation in another way.

4. Public execution of software.
The right to publicly perform software is any demonstration of software for commercial or other benefit.

5. Translation of the software interface.

6. Reworks, adaptations and other similar changes to the software.
The right to adapt the software is the introduction of changes made solely for the purpose of ensuring the functioning of the software on specific computers or under the control of specific computer programs. The right to modify (redesign) the software is any changes that are not adaptation.

7. Software import.

In the vast majority of cases, when the Customer purchases software, we are talking about non-exclusive rights

Copyrights for all types of computer programs (including operating systems and software packages), which can be expressed in any language and in any form, including source text and object code, are protected in the same way as copyrights for works of literature. A computer program is a set of data and commands presented in an objective form, intended for the operation of a computer and other computer devices in order to obtain a certain result, including preparatory materials obtained during the development of a computer program, and the audiovisual displays generated by it.

A non-exclusive right to computer programs, that is, a property right on a non-exclusive basis, implies the limited right of its owner to use such programs within the limits specified by the contract. Non-exclusive rights to use computer programs are transferred by concluding a license agreement with the copyright holder of these programs.

In accordance with paragraph 1 of Article 1286 of the Civil Code of the Russian Federation, under a license agreement, one party - the holder of the exclusive right to a computer program (licensor) grants or undertakes to provide the other party (licensee) with the right to use this program within the limits provided for by the agreement. According to paragraph 2 of paragraph 1 of Article 1235 of the Civil Code of the Russian Federation, the licensee can use the program only within the limits of those rights and in the ways provided for by the agreement. The right to use such a program not expressly stated in the license agreement is not considered granted to the licensee.

By virtue of paragraph 3 of Article 1235 of the Civil Code of the Russian Federation, the license agreement indicates the territory in which the use of the program is permitted. If the license agreement does not indicate the territory in which the use of the program is permitted, the licensee has the right to use it throughout the entire territory of the Russian Federation.

The period for which the license agreement is concluded cannot exceed the period of validity of the exclusive right to the work (clause 4 of Article 1235 of the Civil Code of the Russian Federation). If the license agreement does not specify its validity period, the agreement is considered to be concluded for five years, unless otherwise provided by the Civil Code of the Russian Federation. In case of termination of the exclusive right, the license agreement is terminated.

In accordance with paragraph 4 of Article 1286 of the Civil Code of the Russian Federation, a paid license agreement must necessarily stipulate the amount of remuneration for using the program or the procedure for calculating such remuneration. Such an agreement may provide for the payment of remuneration to the licensor in the form of fixed one-time or periodic payments, percentage deductions from income (revenue) or in another form.

According to paragraph 6 of Article 1235 of the Civil Code of the Russian Federation, the essential terms of the license agreement are:

• subject of the contract
• ways to use the program

The transfer of the exclusive right to a work to a new copyright holder is not a basis for changing or terminating the license agreement concluded by the previous copyright holder on the basis of paragraph 7 of Article 1235 of the Civil Code of the Russian Federation.

Please note that license agreements, by virtue of paragraph 1 of Article 1236 of the Civil Code of the Russian Federation, may provide for:

• granting the licensee the right to use the program while reserving the licensor’s right to issue licenses to other persons (simple (non-exclusive) license)
• granting the licensee the right to use the program without retaining the licensor’s right to issue licenses to other persons (exclusive license)

Unless otherwise provided in the license agreement, the license is assumed to be simple (non-exclusive). In addition, the same agreement, in accordance with paragraph 3 of Article 1236 of the Civil Code of the Russian Federation, may simultaneously contain the terms of an exclusive and non-exclusive license for different ways of using the program.

BEHIND THE LETTER OF THE LAW

tax consultant, member of the Chamber of Tax Advisors, expert editor of the magazine “Simplified Accounting”

Exclusive right

To determine whether a particular software belongs to intangible assets, it is not always enough to analyze the corresponding PBUs. Indeed, in this matter, first of all, it is necessary to understand whether the organization acquires an exclusive right or not.

In addition to the right of ownership and other property rights, civil legislation determines the grounds for the emergence and procedure for the exercise of rights to the results of intellectual activity and equivalent means of individualization (intellectual rights).

Protected results of intellectual activity and means of individualization equated to them (they are called intellectual property) are objects of civil rights. These also include things, other property, works, services, intangible benefits that are in civil circulation and the rights to which, as a general rule, are freely alienated on the basis of transactions, transferred from one person to another in the order of universal succession (inheritance, reorganization) or in a different way. The exception is cases when such rights are limited in circulation.

An exhaustive list of the results of intellectual activity and equivalent means of individualization of legal entities, goods, works, services and enterprises that are granted legal protection (types of intellectual property) is contained in paragraph 1 of Art. 1225 of the Civil Code of the Russian Federation.

GOOD TO KNOW
Federal Law No. 35-FZ of April 12, 2014 introduced large-scale amendments to the Civil Code of the Russian Federation on intellectual property. Most of the amendments will come into force on October 1, 2014.

Rights are recognized to the results of intellectual activity and means of individualization; they are called intellectual rights. They include an exclusive right (which is a property right), and in cases provided for by the Civil Code of the Russian Federation, also personal non-property rights and other rights: inheritance, access and others.

In relation to intellectual property, the Civil Code of the Russian Federation distinguishes the concepts of author, copyright holder and licensor.

The author of the result of intellectual activity is the citizen whose creative work created such a result (clause 1 of Article 1228 of the Civil Code of the Russian Federation), that is, civil legislation connects the creation of intellectual property with the creative work of a particular person. The exclusive right to the result of intellectual activity created by creative work initially arises with its author. However, this right can be transferred by him to another person.

GOOD TO KNOW
In 2014, the provisions on state registration of the results of intellectual activity and means of individualization, the agreement on the alienation of exclusive rights, and the licensing agreement were clarified.

The copyright holder may dispose of his exclusive right to the result of intellectual activity in any way that does not contradict the law and the essence of such right, including by alienating it under an agreement to another person or by granting him the right to use it under a license agreement (clause 1 of article 1229, clause 1 Art. 1233 of the Civil Code of the Russian Federation).

License agreement

Under a license agreement, one party - the holder of the exclusive right to the result of intellectual activity or to a means of individualization (licensor) grants or undertakes to provide the other party (licensee) with the right to use such result within the limits provided for by the agreement.

The licensee may use the result of intellectual activity or a means of individualization only within the limits of those rights and in the ways provided for by the agreement. The right to use the result of intellectual activity or a means of individualization that is not expressly specified in the agreement is not considered granted to the licensee.

ORIGINAL SOURCE
Exclusive rights to the results of intellectual activity and means of individualization can be protected, including by presenting a requirement to suppress actions that violate the right or create a threat of its violation. The latter is also applied to persons who can stop such actions. In order to secure a claim in a case of violation of an exclusive right, in some cases a ban on corresponding actions in the ITS is established.
- Federal Law of March 12, 2014 No. 35-FZ.

The license agreement is concluded in writing, unless otherwise provided by the Civil Code of the Russian Federation. The agreement is subject to state registration in the cases specified in paragraph 2 of Art. 1232 of the Civil Code of the Russian Federation. If the exclusive right is terminated, the contract becomes invalid. Under such an agreement, the licensee undertakes to pay the licensor the remuneration stipulated by the agreement, unless otherwise provided by the document.

If there is no provision in the paid license agreement regarding the amount of remuneration or the procedure for determining it, the agreement is considered not concluded. At the same time, the rules for determining the price provided for in paragraph 3 of Art. 424 of the Civil Code of the Russian Federation do not apply.

Agreement on alienation of exclusive rights

If we are talking about an agreement on the alienation of an exclusive right, then, according to Art. 1234 of the Civil Code of the Russian Federation, one party (the copyright holder) transfers or undertakes to transfer its exclusive right to the result of intellectual activity or to a means of individualization in full to the other party (the acquirer).

An agreement on the alienation of an exclusive right is concluded in writing and is subject to state registration in the cases provided for in paragraph 2 of Art. 1232 of the Civil Code of the Russian Federation. Failure to comply with the written form or the requirement for state registration entails the invalidity of the document.

Under an agreement on the alienation of an exclusive right, the acquirer undertakes to pay the right holder the remuneration provided for in the agreement, unless otherwise provided by the document. If there is no provision in a paid agreement on the alienation of an exclusive right regarding the amount of remuneration or the procedure for determining it, the agreement is considered not concluded. At the same time, the rules for determining the price provided for in paragraph 3 of Art. 424 of the Civil Code of the Russian Federation do not apply.

IMPORTANT IN WORK
From October 1, 2014, a rule will come into force according to which the licensor will not be able to use the result of intellectual activity or a means of individualization to the extent that the right to use such a result or such a means of individualization is granted to the licensee under an agreement on the terms of an exclusive license, unless this agreement provides other.

The exclusive right to the result of intellectual activity or to a means of individualization passes from the copyright holder to the acquirer at the time of concluding an alienation agreement, unless otherwise provided by agreement of the parties. If the alienation agreement is subject to state registration, the exclusive right to such a result or to such a means passes from the copyright holder to the acquirer at the time of state registration of the document.

Treaty of accession

Clause 3 of Art. 1286 of the Civil Code of the Russian Federation establishes that the conclusion of licensing agreements granting the right to use a computer program or database is permitted by concluding an accession agreement between each user and the corresponding copyright holder. Its terms are stated on the copy of such program or database you purchase or on the packaging. The start of use of such a program or database by the user, as defined in these terms, constitutes his consent to enter into a contract.

How do “exclusive” rights differ from “non-exclusive” ones?

The mention in a software license agreement of “transfer of exclusive or non-exclusive rights” is a relic that contradicts the provisions of current legislation. The exclusive right to software (the term is used in the singular) is proprietary and implies a monopoly right to use it in any way that does not contradict the law, as well as to dispose of such right.

The term “non-exclusive right” is not used in current legislation. In addition to the exclusive right, there is only the right of obligation, i.e. based on a license agreement and derived from the exclusive right. As a clear analogy, let us give an example with the right of ownership of a thing (property right) and the right to lease such a thing (law of obligations).

IMPORTANT IN WORK
If a legal entity repeatedly or grossly violates the exclusive rights to the results of intellectual activity and to means of individualization, the court, in accordance with paragraph 2 of Art. 61 of the Civil Code of the Russian Federation, if such a legal entity is guilty of violating exclusive rights, it may decide to liquidate it at the request of the prosecutor.

If we delve deeper into the history of the issue, the Law of the Russian Federation dated July 09, 1993 No. 5351-1 “On Copyright and Related Rights,” which was in force before Part 4 of the Civil Code of the Russian Federation came into force in 2008, provided for the possibility of disposing of the property right to software on the basis of an author’s agreement on the transfer of exclusive or non-exclusive rights.

Until 2008, the law did not directly provide for the possibility of alienation of property rights to computer programs or a database. As a result, the issue was resolved by concluding a copyright agreement and transferring exclusive rights for the entire period of their validity. Since 2008, the “author’s agreement” has been replaced, as already mentioned, by two main types of agreement for the disposal of rights to software: an alienation agreement and a license agreement.

The right to use the software can be transferred under a simple (non-exclusive) or exclusive license.

ORIGINAL SOURCE
A license agreement under which the author or other rights holder (licensor) grants the licensee a simple (non-exclusive) license to use a work of science, literature or art can be concluded in a simplified manner (open license).
- Article 1286.1 of the Civil Code of the Russian Federation.

A simple (non-exclusive) license implies that the licensor retains the right to issue licenses to other persons. Therefore, this type of agreement can be considered the closest analogue of an author’s agreement on the transfer of non-exclusive rights.

An exclusive license involves granting the licensee the right to use the result of intellectual activity or a means of individualization without reserving the licensor’s right to issue licenses to other persons. Accordingly, such an agreement is closer to a copyright agreement on the transfer of exclusive rights.

How does using software differ from using it?

One of the essential terms of a software license agreement is an indication of the permitted uses of such software products. In this case, we are not talking about a description of the functionality or the procedure for using programs for their intended purpose, as is often the case. Since a license agreement presupposes the granting of the right to use, the absence of an indication in it of methods of use that comply with the requirements of the law or their replacement with fictitious methods automatically entails the possibility of recognizing such an agreement as not concluded.

Copyright governs the circulation of copies of works, including software. Therefore, legal methods of using software should only be understood as actions aimed at transferring copies of them to third parties. Extracting useful properties of software as part of using a copy of it is not considered by law to be methods of use.

GOOD TO KNOW
Incorrect use of terminology significantly complicates the interpretation of the contract.

The main ways of using works are listed in Art. 1270 Civil Code of the Russian Federation. Among them, methods of using the software include the following:

1. Reproduction of software, that is, the production of one or more copies of software or its part in any material form, including recording in computer memory.
2. Distribution of software through sale or other alienation of its copies.
3. Public display of the Software, that is, any display of a copy of the Software on a screen using a television frame or other technical means in a place open to the public, or in a place where a significant number of persons outside the normal circle of the family are present, regardless of whether it is perceived Software at the place of its demonstration or in another place simultaneously with the demonstration of the software.
4. Importing copies of software for distribution purposes.
5. Renting a copy of the software when the program is the main object of rental.
6. Modification of the software, i.e. any changes to it, including translation of a program or database from one language to another, with the exception of adaptation, that is, changes made solely for the purpose of functioning of the program or database on specific technical means of the user or under control of specific user programs.
7. Making the software available to the public in such a way that any person can access it from any place and at any time of their own choice (making it available to the public), i.e. transferring a copy over the Internet.

IMPORTANT IN WORK
Application of programs according to their functional purpose, adaptation of programs by customizing them using built-in internal capabilities
do not apply
to the use of the material.

Established in Art. 1270 of the Civil Code of the Russian Federation, the list of ways to use software is open, i.e. the legislation does not exclude the possibility of the existence of other methods. However, they should relate directly to the transfer of software copies, and not to the practical implementation of the functionality inherent in them, as mentioned above.

License to use computer programs: essence, types

In accordance with paragraph 1 of Art. 1286 of the Civil Code of the Russian Federation, a license agreement is an agreement on granting rights to use a work (in this case, a computer program) to a person who is not its author or other copyright holder by virtue of the law.

A software license, depending on the scope of the licensor’s rights, can be of 2 types:

• simple (non-exclusive), presupposing that the copyright holder retains the right to issue similar licenses to other persons;
• exclusive, depriving the licensor of such right.

In this case, the formula “1 agreement = 1 type of license” is not mandatory. By virtue of clause 3 of Art. 1236 of the Civil Code of the Russian Federation, within the framework of 1 agreement, a combination of conditions of both types is allowed in relation to different ways of using the software.

Software license agreement: procedure for conclusion, conditions

The contract requires compliance with a simple written form without additional procedures, such as notarization or state registration. The exception is when it comes to transferring a license for a computer program registered with Rospatent. The license for such software is also subject to mandatory registration.

For simple (non-exclusive) licenses, a simplified procedure for concluding an agreement is acceptable. As such, in particular, the statement of the terms of the agreement on the copy of the program itself, the packaging of such a copy, or in electronic form is regarded (paragraph 2, clause 5, article 1286 of the Civil Code of the Russian Federation).

The position of the courts on this matter is quite clear: the beginning of using the program in accordance with the terms of the agreement set out on a copy of the program or attached to it in the form of an electronic document means the licensee’s consent to enter into an agreement (for example, the resolution of the 1st Arbitration Court of Appeal dated 08/03/2015 No. 01AP-3956/15).

Software license agreement will not be considered concluded if it does not contain clauses regulating:

• licensed object (software, software, etc.);
• permitted uses of the software.

In addition, compensation contracts require regulation of remuneration - the procedure for determining and paying it. If the contract does not contain the appropriate conditions, it will also be considered not concluded (Part 2, Clause 5, Article 1235 of the Civil Code of the Russian Federation).

Important! Particular attention in this part should be paid to agreements concluded in a simplified manner. By virtue of Part 3, Clause 5, Art. 1286 of the Civil Code of the Russian Federation, if such an agreement does not contain a clause on fees, it is a priori considered gratuitous (provided that the agreement itself does not provide otherwise). This condition cannot be changed later.

Another important condition of the license agreement, including for software, is the geography of use of the license. The agreement cannot extend beyond the territory of protection of the software as an object of intellectual property.

In other words, a license agreement must be concluded in order to use the license on the territory of the Russian Federation. Changing geography is allowed only in the direction of narrowing, for example, by selecting 1 or several regions of the country. As for the legal protection of Russian software abroad, it is carried out in accordance with international treaties of the Russian Federation in the field of protection of copyright objects.

If the agreement does not contain a clause regulating the territory of use of the software license, the entire Russian Federation is automatically recognized as such (clause 3 of Article 1235 of the Civil Code of the Russian Federation).

Software license: validity period

According to the general rule set out in paragraph 4 of Art. 1235 of the Civil Code of the Russian Federation, the validity period of the license is limited by the validity period of the right to the software. Thus, the granting of a perpetual license, although it does not entail the invalidity of the contract, is incorrect.

If there is no clause regulating the period for granting the right to use the software in the contract, the contract is considered concluded for 5 years (Part 2, Clause 4, Article 1235 of the Civil Code of the Russian Federation), provided that the licensor’s exclusive right to the program does not terminate earlier, since In such a situation, the validity of the contract is simultaneously terminated.

Drawing up a software license agreement, due to its specifics, requires not only strict adherence to the Civil Code norms, but also the presence of certain practical skills. Otherwise, there is a high probability of missing many nuances, the significance of which may become apparent already during the validity period of the license. To avoid such consequences, it is recommended to use a ready-made contract form.

You can download a sample software license agreement from the following link: