Software excitement

The copyright owners are on the offensive against dishonest users. Some employers, wishing to economize, execute an agreement with the employees that they will do their job with the use of their personal computers. What about the software? Can this be seen as its commercial use? The experts of the “ezh-Yurist” newspaper agree in some things and essentially disagree on other moments regarding the liability of employers in such situations. The issue is certainly debatable, and it is too early to draw any conclusions.

An expert’s commentary.

Alexander Shugaev, Advocate of the Law Firm "YUST"

The fact of the use of the home computer for work does not lead to any risks for employee or employer. In this case, the rights given under the EULA to the software should be taken into account.

As a general rule, limitations on the commercial use of the software are imposed under the license agreements on the so-called freeware, conditionally freeware, “home” and “educational” versions of software products. It should be taken into account that the permission of commercial use of the software must be directly included in the license agreement. The absence of the prohibition to use the shareware for commercial purposes in the EULA does not mean that such right is granted.

For example, pursuant to Article 1235 of the CCRF, the right to use a result of intellectual activity or a means of individualization, which is not directly stipulated in the license agreement, is not considered given to the licensee.

According to Article 15 of the LCRF, employment relations are relations based on the agreement between the employer and the employee on personal fulfillment of work function by the employee against remuneration. Therefore, the use by the employer of shareware installed on his home computer may be classified as commercial use, namely – income extracting activity.

It should be noted that the license agreement is executed between the rightholder and the end user, which leads to the fact that only the employee, who is the end user, will be liable for the actually unlicensed use of the software, namely – abuse of rights given under the license. Civil law (articles 1250, 1252, 1253, 1301 and 1311 of the CCRF), criminal (Article 146 of the Penal Code of Russia) and administrative (Article 7.12 of the AOCRF) liability arises for the breach of a license agreement, which resulted in the arising or the possibility of arising of violation of exclusive rights to software.

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For more details see the printed version of the “ezh-Yurist” newspaper (No. 23, June of 2013).