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§3. Protection and features of civil responsibility for infringement of the intellectual rights to databases

The constitution of the Russian Federation in item 44 specifies that the intellectual property is protected by the law. Intellectual property right perfection in connection with reform of the civil legislation which introduces the corrective amendments in methods of protection of this hi-tech way of deposition of the information is observed.

The increase in requirement for creation and use of databases among the commercial organisations and the individual businessmen, caused by a growing demand for automation of business processes, generates necessity of working out of effectual measures of reaction to infringements of the intellectual rights. For databases the choice of an optimum way of civil-law protection becomes complicated plurality of the subjects possessing the similar intellectual rights to a given result of intellectual activity, and also interrelation with the COMPUTER. Thus, in our opinion, the establishment and realisation of measures of civil-law protection of the intellectual rights, for example, the author of the programmer-developer and the author - of the composer of the information, and also the investor of the manufacturer of a database, will differ radically from each other.

Separate ways of protection of the civil rights from the base list regulated by item 12 GK the Russian Federation, have received expression in the form of the special

Legal regulation, characteristic for protection of results

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Intellectual activity in chapter 69 GK the Russian Federation. Thus the legislative list of measures of protection of the author's and adjacent rights, basically, is identical to item 12 GK the Russian Federation and the Russian Federation is partially duplicated in item 1250-1252 GK. The listed measures of protection [178 [179] equally are applied to protection of the rights to any results of intellectual activity, hence, to protection of the rights to databases they also are applicable. Norms declare a legal protection of the intellectual rights as a whole, and also define special methods of protection of the personal non-property rights and exclusive rights to databases.

At realisation of protection of the author's and adjacent right to object of intellectual property investigated in work it is necessary to specify, what even in case of absence of fault from the potential infringer, owing to item 1250 GK the Russian Federation, it will not be released from a duty of bar of claim by lapse of time of infringement

The intellectual rights. To it measures also can be applied,

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Directed on protection of such rights.

The domestic legislation provides the list of ways of protection of databases at presence at the person of the exclusive right. In item 1252 GK the Russian Federation, however, is not deciphered, which exclusive right is necessary for possessing to realise a legal protection. Thus, it is possible to draw that any subject of exclusive rights to databases (author's or adjacent) the demand can make a conclusion:

1) about a right recognition - to the person who denies or otherwise does not recognise the right, breaking thereby interests of the legal owner;

2) about suppression of the actions outraging or creating threat of its infringement, - to the person who is making such actions or carrying out necessary preparations for them;

3) about the indemnification - to the person wrongfully using result of intellectual activity or means of an individualization, without making agreement with the legal owner (bezdogovornoe use), or otherwise broken its exclusive right and caused to it a damage; [180 [181]

Thus in item 3 of analyzed article also it is specified, that in the cases provided GK the Russian Federation for separate kinds of results of intellectual activity or means of an individualization, at infringement of the exclusive right the legal owner has the right to demand instead of the indemnification from the infringer of payment of indemnification for infringement of the specified right.

Thus, for databases there is the special measure of protection alternative to the general rule about the indemnification.

4) about withdrawal of the material carrier - to its manufacturer, the importer, the keeper, a carrier, the seller, other distributor, the male fide purchaser;

5) about the decree publication about the admitted infringement with instructions of the valid legal owner - to the infringer of the exclusive right.

As obosnovanno specifies E.A.Morgunova, for owners of the personal non-property author's and adjacent rights the legislator also results the list of special measures of protection. In particular, according to item 1251 GK the Russian Federation, is supposed protection:

1) by a right recognition;

2) restoration of the position existing before breach of law;

3) suppressions of the actions outraging or creating threat of its infringement;

4) indemnifications of moral harm;

5) decree publications about the admitted infringement.

It is necessary to notice, that norms of above-named articles take for a basis article 12 GK the Russian Federation in which the list of ways of protection of the civil rights is provided. However, in our opinion, cause a censure following formulations of the legislation. So, as one of measures of civil-law protection of the exclusive right, resulted in item 1252 GK the Russian Federation, suppression of the [182] actions outraging or creating threat of its infringement is specified. Thus items 12 and 1251 GK the Russian Federation give broad treatment of the given norm and, along with suppression of wrongful acts, suppose possibility of the requirement of restoration of the position existing before breach of law. Thus, according to item 1251 GK the Russian Federation, is supposed possibility of protection of the personal non-property rights to databases by restoration of the position existing before breach of law. Possibly, and for protection of exclusive rights which by the legal nature are property, it is expedient to extend the specified measure of protection. So, for example, in case of wrongful capture of the rights of administration of a database, including with use of an information-communication network the Internet, first of all, it will be necessary for owner of the exclusive right to return possibility again to use and dispose of the result of intellectual activity and only after that to collect indemnification for exclusive right infringement.

Also special interest represents point 2 of item 1251 GK the Russian Federation in which it is specified, that positions of given article are applied to protection of the rights provided by point 2 of item 1333 GK the Russian Federation. In the given point competences of the manufacturer of a database and, along with the personal non-property rights are deciphered, the exclusive right of the manufacturer of a database is specified. Thus, from close interpretation of rules of law it is possible to draw a conclusion that at infringement of the exclusive adjacent right of the manufacturer of a database to the infringer it is possible to apply measures of protection of the personal non-property rights. Proceeding from the described norm, there is a question, whether it is possible to apply to protection of the exclusive adjacent right of the manufacturer of norm of item 1252 GK the Russian Federation about protection of exclusive rights if they are protected by ways, characteristic to the non-property rights, and also whether the exclusive right of the manufacturer is property if protection of this right is supposed from ways of protection of the personal non-property rights. In our opinion, in view of absence of a legal interdiction for application of norms about protection of exclusive rights for the exclusive adjacent rights of the manufacturer of databases, and also with the account of a principle of optionality of the civil legislation the legal protection of the adjacent rights of the manufacturer by any of the above-named ways, including specified in item 1252 GK the Russian Federation is supposed.

Along with the general ways of protection of the civil rights, in item 1252 GK the Russian Federations are available three special ways of protection of the exclusive right to objects of intellectual property. As authors mark, they are most effective at protection of results of intellectual activity. Such ways concern the decree publication about the admitted infringement, withdrawal from a turn of material carriers which in practice are understood as counterfeit data carriers, and also the monetary indemnification applied instead of the indemnification. The specified methods of protection really are most effectual measures of suppression of offences, and also restoration of the broken author's and adjacent rights to databases. Thus withdrawals from a turn of the material carriers containing counterfeit materials as the measure of protection of databases demands more detailed consideration. Withdrawal from a turn of the material carriers containing counterfeit materials, it is specified in the legislation as a measure of protection only exclusive rights which are property, thus the measure of protection is applied to protection of the personal non-property rights in the form of restoration of the position existing before breach of law. Hence, from a turn of the material carriers containing counterfeit materials, it is possible to regard withdrawal as a way of the protection, called to restore the position existing before infringement of the exclusive right which thus has strongly pronounced preventive function as provides for infringement rather rigid property sanction in the form of [183] withdrawals from the civil circulation of the equipment, devices and materials. The similar conclusion contains, in particular, in the item 46 «Agreements on trading aspects of intellectual property rights» (TRIPS) in which the similar measure of protection as an effective remedy of keeping from infringement of the rights to which authors refer is described. Undoubtedly, the similar special measure of civil-law protection will have efficiency concerning the majority of results of intellectual activity, however, with reference to databases, it is necessary to note the following. The agreement on trading aspects of intellectual property rights was accepted in Marrakesh on April, 15th, 1994, and universal distribution of databases, and also active development of legal regulation to this sphere is dated later dates. Thus, at the moment of acceptance of Agreement TRIPS, the considered way of protection could not consider specificity of this result of intellectual activity. Thereupon, possibly, special measure of protection of results of intellectual activity in the form of withdrawal from a turn of counterfeit material carriers will be used in the subsequent also for suppression of offences concerning databases, but already in much smaller degree. In particular, for today of a database, in view of extensiveness of volumes hranimoj information, all meet on material carriers less often, and their use in overwhelming majority of cases is connected with a network the Internet. Hence, use of withdrawal from a turn of the material carriers containing counterfeit materials as an alternative measure to restoration of position, existing before exclusive right infringement, rather disputably. In the example resulted in work with database administration necessity of inclusion of norm about restoration of the broken rights as the supplementary measure of protection of exclusive rights to databases is visually shown. Thus the alternative measure of protection in withdrawals from a turn of counterfeit material carriers will not reach necessary effect as administration in a network the Internet is not connected in any way with material expression of a database and with their counterfeit condition. The similar legal design connected with confiscation of copies of products, contains in the form of the sanction for infringement of the author's and adjacent rights in item 7.12 of the Code of the Russian Federation about administrative violations. Thus unlike grazhdanskopravovoj measures of protection of databases in KoAP the Russian Federation is spoken about confiscation not only counterfeit copies of products, but also materials together with the equipment used for their reproduction, and also other tools of fulfilment of the specified administrative violation. Thus, in ч.3 item 32.4 KoAP the Russian Federation it is specified, that confiscated in the form of the sanction for infringement of a part 1 items 7.12 data FZ copies of products and soundtracks, materials and the equipment, used for their reproduction and other tools of fulfilment of administrative violation, are liable to destruction, except for cases of transfer confiscated kontrafakta to the legal owner under its request. As specifies O.V.Pankova, such transfer is admissible at presence in materials of business of the statement of the legal owner [184]. Thus, within the limits of the official penalty of the confiscated copies of the database which are counterfeit, they can be transferred the legal owner under its request. Thereupon independent there is an order of similar collecting, and also an order of definition of the subject possessing possibility of reception of specified counterfeit databases. In particular, the developer and the composer-developer possessing copyrights to a database, or the manufacturer owning the adjacent right can be it the author-. As writes E.N. Petrov, to the legal owners, preferring to take advantage of administrative ways of protection against manufacture of counterfeit production, it is necessary to consider the circumstances established KoAP the Russian Federation, first of all, of consideration connected with terms in arbitration courts of offences in sphere of intellectual property. However in the cases connected with import of counterfeit production from abroad, norms of the legislation on the customs offences, administrative actions providing, mainly, [185 [186] [187] more often are applied. Thus, in the domestic legislation application possibility to infringers of the intellectual rights to databases of norms administrative and criminal law is provided. However protection of databases by public law branches has the purpose, first of all, protection of interests of all society, instead of the concrete person which rights are broken. Hence, application of the conservation measures provided by the public law, cannot compensate to the full a damage caused to interests of the legal owner, and has character of the supplementary measure of the responsibility accompanying the basic civil-law.

Right recognition as the variant of civil-law protection of the right, along with item 12 GK the Russian Federation, is specified as a kind of protection of the intellectual rights, thus both exclusive, and the personal non-property. With reference to features of a legal protection of databases the analyzed way of protection will not possess specificity in comparison with other results of intellectual activity. Thus, the right recognition is admissible to realise in claims about protection of rights of authorship and the rights addressed to the author on a database. Besides, this way can find practical application and in protection of the adjacent rights of the manufacturer, for example, at protection of the right to instructions on copies of a database and (or) packings of a name of the manufacturer or its name.

Analyzing efficiency of various methods of protection of the intellectual rights to databases, it is necessary to notice, that alternatively the indemnification at protection of the intellectual rights to databases it is the most expedient to apply special ways of protection, characteristic to them. So, in cases of infringement of the exclusive right, according to item 1252 item, 1301, 1311 GK the Russian Federation, the legal owner has the right to demand instead of the indemnification at the choice of payment of indemnification at the rate from ten thousand roubles to five millions the roubles, defined on judicial discretion, or in the double size of cost of copies of product or in the double size of cost of the right of use of the product, defined proceeding from the price which under comparable circumstances usually is levied for lawful use of product.

Practical realisation of ways of protection and application grazhdanskopravovoj a liability of infringement of the intellectual rights to databases assumes the account of specificity of these hi-tech products. First of all, it is necessary to pay attention, that the legal definition of item 1260 GK the Russian Federation establishes restrictions on application of a legal regime of databases for not electronic card files and other similar ways of deposition of the information. Hence, application of ways of protection and measures of grazhdansko-steam responsibility for the databases fixed on material carriers, is not obviously possible. They receive protection from other legal regimes, for example, from the copyright to collections or to other forms of compound products. At the same time and electronic databases, on a level with other collections, receive similar protection as for a given result of intellectual activity characteristic line is presence of the set of independent materials presented in the objective form. Hence, inherently they also are the collection, as

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Concern compound products. [188]

Specificity of the given object of intellectual property has predetermined a number of aspects which are necessary for considering at a choice of an optimum way of civil-law protection of the rights arising in connection with creation and use of this hi-tech product. As optimum ways of protection of the rights to a database are connected with special avtorsko-legal designs, at its realisation it is necessary to consider degree of creative character of the created object of intellectual property. As it was marked in the given work, the creative element at databases can be reduced both to the form - architecture of a database, and to the maintenance - to information filling. Besides, certain legal protection is received by the special subject possessing the adjacent right - the manufacturer of a database. Before recent changes in the domestic law of intellectual property the majority of authors were uniform in opinion, that it does not bring the creative contribution to creation of a given result of intellectual activity, and carries out organizational-technical functions. Thus, at application by the given subject of various ways of protection or civil responsibility measures for infringement of its rights to the created hi-tech product the establishment for it creative character in work on this object was not required. Presence in item 1333 GK the Russian Federations, along with the exclusive right of the manufacturer, the right to instructions to copies of a database and (or) their packings of the name or the name which is author's by the legal nature, also did not demand definition of a creative element for legal protection realisation.

Inclusion in GK the Russian Federation of item 1335.1 called «the Actions which are not infringement of the exclusive right of the manufacturer of a database», has introduced the list of actions which is admissible to make without the consent of the manufacturer of databases in that measure in which such actions do not break copyrights of the manufacturer of a database in the legislation. As presence of copyrights in any case provides an establishment of the creative contribution at present, at definition of possibility of application of measures of protection of the intellectual rights of the manufacturer it is necessary to establish the specified characteristic of the subject. The given short story of the legislator represents scientific interest if to consider subjects of the rights to databases, including the manufacturer of databases, in interrelation with object. In ch. 2 items 1259 GK the Russian Federation are specified, that compound products, that is the products representing on selection or an arrangement of materials result of creative activity concern objects of the copyright. Thus, as it is specified in item 1260 GK the Russian Federation, databases concern compound products, including, hence, they are objects of the copyright. Unfortunately, despite numerous sendings regarding the fourth GK the Russian Federation to the term «result of creative activity» as to a necessary element at an establishment avtorsko - a legal protection of the intellectual rights, in the current legislation the being of this term does not reveal. It is necessary to notice, that discussions in the scientific environment concerning concept definition «creative character» objects of the copyright are led for a long time [189]. However with acceptance of a part by the fourth GK the Russian Federation, disputes became especially sharp [190 [191]. The special urgency at realisation of civil-law protection of the intellectual rights to databases is got by presence of "creative character» in so-called "not creative" databases (for example, in electronic telephone directories) as in them it is present at much smaller degree, than in other objects of the copyright, that in turn causes difficulties in practice and creates restrictions for an avtorsko-legal protection. The creative element also is present at not creative databases, but it is concluded not in the maintenance which was prepared by the composer of the information, and in the form of the study of architecture of databases chosen by the programmer-developer, and also in the initial code written to it.

Possibly, for the decision of the specified problem as to the necessary subject in working out of any database it is necessary for programmers-developers to introduce in it something conceptually new. Taking into account that the considered object of intellectual property is closely connected with the COMPUTER and actually cannot exist without it, programmers should use this feature for privnesenija in this result of intellectual activity let small, but additional creative character. Certainly, to think up completely new architecture, from the technical point of view, frequently it is not obviously possible, however, primenitelno, for example, to their electronic telephone directories it is possible to add with function of adaptive search of data in base or to create new fonts for the information containing in given object of intellectual property. It will allow to introduce creative character in a database and to extend to it an avtorsko-legal protection.

Responsibility of the developer of databases in obligations on creation of this result of intellectual activity also gets under action of special legal regulation. In particular, in item 1290 GK the Russian Federation it is established, that in case of default or inadequate execution of a contract of the author's order for which the author bears responsibility, the author is obliged to return to the customer advance payment, and also to pay it the penalty if it is provided by the contract. Thus the general size of the specified payments is limited by the sum of the real damage caused to the customer. Thus, responsibility of the developer, according to copyright special provisions, in obligations on creation of databases, is limited by the sum of a real damage. This legislative norm is quite justified, as it considers complexity of work of the programmer over hi-tech products and allows to establish the compromise in obligations on working out of databases.

Significant aspect of a legal protection of databases are the questions arising in connection with free use of the given hi-tech product. The operating civil legislation provides the right of free use of databases to an uncertain circle of persons at observance of the conditions established in item 1280 and 1334 GK Russian Federation. First of all, there are requirements to the subject using a database. The person legally owning a copy databases (user) can be it. In case of presence of lawful possession at the user to it it is accorded a right without the permission of the author or other legal owner and without extra fee payment:

- To make to a change database it is exclusive with a view of their functioning on means of the user and to carry out the actions necessary for functioning of such database, according to its appointment, including, record and storage in a computer memory (one COMPUTER or one user of a network) and also to carry out correction of appreciable errors if other is not provided by the contract with the legal owner;

- To make a database copy provided that this copy is intended only for the archival purposes or for replacement of legally got copy in cases when such copy is lost, destroyed or became unsuitable for use. Thus the database copy cannot be used in other purposes and should be destroyed, if possession of a database copy has ceased to be lawful;

- To take from such database materials and to carry out their subsequent use in personal, scientific, educational and other non-commercial objectives in the volume justified by the specified purposes and in that measure in which such actions do not break copyrights of the manufacturer of a database and other persons.

All three ways of free use set forth above should not cause an unjustified damage to normal use of databases and restrain in the unreasonable image legitimate interests of the author or other legal owner.

Realisation of civil-law protection in connection with free use of databases, first of all, is directed on suppression of abusings by the specified right from users. So, for example, the current legislation does not define, on which carrier the copy intended only for the archival purposes or for replacement of legally got copy which the Russian Federation is mentioned in item 1280 GK should be stored. It can lead to placing of the created copy in a network the Internet on file exchange sites on which many users store the data. The answer to a question on is not unequivocal, whether the similar archival copy can restrain in the unreasonable image legitimate interests of the author or other legal owner. Possibly, realisation of mechanisms of civil-law protection of databases in this case will be connected with a policy of confidentiality of the data placed on specified sites. If foreign users have a possibility for copying of the information placed in archive at the user, legally owning a database copy interests of the legal owner appear broken if at foreign users of such possibility is not present, a similar copy is admissible to create.

As to an avtorsko-legal protection of composers of databases for the subjects who are carrying out selection of materials, included in created result of intellectual activity, protection of the intellectual rights to compound product is characteristic. Inherently the creative contribution for the given subjects is characterised by a choice of a substantial constituting database so also application of measures of protection, and also to civil responsibility should be directed on restoration of the intellectual rights connected with the maintenance of a database.

It is necessary to notice, that the programmer-developer and the composer of a database will be co-authors, hence, to them extends the action corrected articles 1258 GK the Russian Federation according to which the citizens who have created product by joint creative activity, admit co-authors irrespective of, whether forms such product indissoluble whole or consists of parts, each of which has independent value. Thus each of co-authors has the right to take independently measures on protection of the rights, including in a case when the product created by co-authors forms the indissoluble whole. Thus, application of measures of a legal protection from encroachments on the database form is admissible, including, and to the composer of a database responsible for a substantial part, and the programmer-developer will possess the right to protect a database, for example, from illegal copying of the maintenance.

The measures of civil-law protection connected with the adjacent rights of the manufacturer of a database are differently realised. At an establishment grazhdanskopravovoj protection of the rights of the manufacturer on considered result of intellectual activity are necessary for considering, that item 1304 GK the Russian Federation carries databases to objects of the adjacent rights regarding their protection from not authorised extraction and a reuse of materials constituting their maintenance. The positions defining competences of the adjacent right of manufacturers of databases, reveal in §5 chapters 71 GK the Russian Federation in more details. In item 1333 GK the Russian Federation it is specified, that the manufacturer of a database the person who has organised creation of a database and work on gathering, processing and an arrangement of materials constituting her admits. Possessing the exclusive adjacent right to databases, manufacturers who though did not participate directly in database creation, but have provided conditions for its working out, also have the right to use measures of protection of the intellectual rights. In item 1334 GK the Russian Federation is noticed, that the exclusive right of the manufacturer of a database operates only concerning those objects of the intellectual property, which creation (including processing or representation of corresponding materials) demands essential financial, material, organizational or other expenses. Besides, there are instructions that at failure of evidence of other, a database which creation demands essential expenses, the result of intellectual activity containing not less of ten thousand of independent information elements (materials) admits, constituting the database maintenance.

From the described norms the conclusion that protection of databases by means of the adjacent right assumes a number of conditions follows. The created result of intellectual activity should contain massive volume of the information (it is desirable, not less than ten thousand independent information elements as presence of similar number of materials, serves as absolute criterion of execution of essential expenses the manufacturer), and civil-law protection is directed on suppression of not authorised extraction and a reuse constituting the maintenance of a database of materials [192]. Degrees of jurisdiction at definition of criteria, applicable to the given objects of intellectual property to which the law interfaces occurrence at the manufacturer of exclusive rights, also start with the criteria specified above [193] more often. However, the criterion of presence not less than ten thousand independent information elements (materials) obviously causes censures. So, in the legislation the concept characteristic «an information element (material)» is not given. Hence, in one case it will be possible to recognise as an information element the letter or a symbol, and in other - separate product, for example, the book. It negatively affects realisation of legal measures of protection of the adjacent right of the manufacturer of databases and minimises a positive effect from available rules of law.

Thus civil responsibility for infringement of the adjacent right of the manufacturer of databases can come for extraction from a database of materials and realisation of their subsequent use without the permission of the legal owner. In particular, extraction of materials is understood as carrying over of all maintenance of a database or the essential of materials constituting it on other information carrier with use of any means and in any form. At the same time the analysis of action of the exclusive right of the manufacturer of a database supposes extensive interpretation of volume of competences of the manufacturer [194]. So, having the exclusive right to take from a database materials and to carry out their subsequent use in any form and any way, the manufacturer can involve in civil responsibility of any persons using base in the ways, specified in item 2 of item 1270 GK the Russian Federation, without its consent. Especially actual the question on civil responsibility of owners of the exclusive right to the separate materials included in a database under claims, submitted manufacturers thus is. Item 2 of item 1334 GK specifies the Russian Federation, that the exclusive right of the manufacturer of a database admits and operates irrespective of presence and action of author's and other exclusive rights of the manufacturer of a database and other persons on materials constituting a database, and also on a database as a whole as compound product. At the same time, in the legislation there is no the norm assuming observance of the rights of authors of databases, also possessing the exclusive right to the part of a database developed by them, hence, for today in the legislation there is the legal collision supposing attraction of authors of databases to civil responsibility by manufacturers of databases. Considering, that authors also have an exclusive copyright to a database as a whole, possibly, against the manufacturer the counterclaim about an interdiction of use of base that will interfere, undoubtedly, to normal use of its competence will be submitted. For example, the programmer - the developer can demand an interdiction for use of a control system by a database to the manufacturer, that completely will deprive of the last possibility to work with materials so to realise the given set of competences. In the conditions of independence of the exclusive adjacent right of the manufacturer of author's and other exclusive rights the requirement to oblige the author-developer to give access to a control system of a database to the manufacturer sees unpromising. It is necessary to notice, that in the conditions of plurality of subjects of the intellectual rights and a duality of a legal regime of databases it is expedient to add the legislation with the norms differentiating measures, databases applied to protection in whole and its separate elements.

For attraction of the persons breaking interests of the legal owner to civil responsibility, expediently preliminary to establish following facts: who breaks interests of the legal owner, to which version (creative or not creative) concerns a database, what interests are broken and in what actions it is expressed. Identification of the specified circumstances to a presentation of requirements about restoration of the broken right allows the legal owner to choose a necessary measure of protection and in the maximum degree to restore the broken right. Thus owners of the exclusive right to a database instead of the indemnification demand, more often, from the infringer of payment of indemnification provided in item 1301 GK the Russian Federation. This special measure of a liability of infringement of the exclusive right to product provides some alternative variants of indemnification:

- Collecting of the double size of cost of copies of product is applied as a measure of responsibility to indemnification of the broken right to the databases, made on the material carrier;

- Collecting of the double size of cost of the right of use of the product defined proceeding from the price which under comparable circumstances usually is levied for lawful use of product. It is used as a measure of a liability of infringement of access right to a database placed in a network the Internet more often;

- Collecting of monetary indemnification at the rate from ten thousand roubles to five millions the roubles, defined at judicial discretion. This measure of responsibility is the most expedient for using at cases of simultaneous plurality of infringements and difficulties in proving of losses.

Collecting specified in item 1301 GK the Russian Federation indemnifications is supposed at cases of infringement of copyrights of the developer (composer) of a database, the rights of the manufacturer of a database, and also at infringement of the rules provided concerning means of protection of databases [195].

Along with the specified measures of civil responsibility, the domestic legislation in the field of intellectual property provides a special measure of civil responsibility of legal bodies and individual businessmen for infringements of exclusive rights to databases. It is necessary to understand regulated item 1253 GK as it the Russian Federation possibility of liquidation of the legal person or the termination of activity of the citizen as the individual businessman on request of the public prosecutor in case of infringement of exclusive rights. The specified measure of responsibility is applicable court in cases numerous or gross violation of the exclusive right to results of intellectual activity which databases concern. It is necessary to notice, that the given measure of responsibility is similar with provided KoAP the Russian Federation punitive measures in the form of disqualification and administrative stay of activity. At the same time liquidation of the legal person or the termination of activity of the citizen as the individual businessman is more strict measure of responsibility as, unlike administrative punishments, she does not assume certain term of imposing of responsibility.

At research of measures of protection from infringement of the intellectual rights to databases it is necessary to analyse a number of the mechanisms named the general term «maintenance of execution of obligations». Characteristic for databases high cost demands study of variants of a guarantee of execution of the obligations arising in connection with working out of databases and their use. It is necessary to notice, that the majority named in the law obespechitelnyh measures do not reflect specificity of databases, however, the approved contractual designs can be used as mechanisms of protection of the separate obligations connected with databases. In item 329 GK the Russian Federation it is specified, that execution of obligations can be provided not only named, but also other ways, statutory or the contract. In particular, for creation of databases for the state and municipal needs it is expedient to use the state guarantees settled by item 6 of item 126 GK the Russian Federation and item 115 - 117 Budgetary codes of the Russian Federation. To be defined, which way of maintenance of execution of obligations approaches as a guarantee of execution of the obligations connected with databases, it is expedient to consider concrete ways in interrelation with the specified result of intellectual activity.

One of named in item 329 GK the Russian Federation of ways of maintenance of execution of obligations is the penalty. It has received the broadest application and is used in maintenance of execution of the most various obligations, therefore to the given way of maintenance of execution of obligations application and in the field of intellectual property was found. The obligations connected with databases as result of intellectual activity, suppose a guarantee of execution by means of a legal design of the penalty. It in this case can be used as the accessory obligation connected with databases. Appeal of this way of maintenance of execution of obligations speaks, first of all, that the penalty represents the simplified way of indemnification of losses [196]

The creditor from actions of the unfair debtor. Penalty as the measure of civil-law protection of legal owners of databases is characteristic for contractual relations in the field of intellectual property. So, at the obligations connected with databases, this way of maintenance of execution of obligations can be applied to the contracts directed on an establishment of legal relations on working out of databases, regarding a guarantee of execution of the obligation in time. Besides, the penalty is effective at a guarantee of execution of the obligation on transfer of the made database of the appropriate quality defined in the contract between the developer and the customer. In article 1290 GK the Russian Federation about responsibility under the contract of the author's order it is directly provided, that in case of default or inadequate execution of a contract of the author's order for which the author bears responsibility, the author is obliged to return to the customer advance payment, and also to pay it the penalty if it is provided by the contract. It is thus legislatively defined, that the cumulative size of payments is limited by the sum of the real damage caused to the customer. At use of the given way of maintenance of execution of obligations it is expedient to include positions about penalties in the text of the basic contract. It is necessary to notice also, that the penalty is similar to the special measure of protection specified in item 1252 GK the Russian Federation, however, as have specified the higher degrees of jurisdiction, it this measure is not [197 [198]. Unlike indemnification which can be applied and to the non-contractual obligations arising in the field of intellectual property, the penalty assumes contract presence. Besides, the penalty is not limited by frameworks of the sizes provided as a special kind of responsibility in item 1301 and 1311 GK Russian Federation. With the penalty a legal design short story GK the Russian Federation named the legislator «Obespechitelnyj payment» is adjacent. At an estimation of efficiency given obespechitelnoj in relation to obligations concerning databases, it is possible to note measures,

That the given way of maintenance of execution of obligations sets as the purpose a guarantee of compensation of money resources from unfair counterparts at approach of negative consequences under the basic obligation. Thus, with reference to a guarantee of execution of obligations concerning databases obespechitelnyj payment will not possess specificity or differences from a guarantee of execution of obligations concerning other objects of the civil rights.

Scientific interest at the analysis of ways of maintenance of execution of obligations concerning databases represents deduction. Under the general rule this way of maintenance of execution of obligations does not represent the big interest to interrelations with intellectual property as in item 359 GK the Russian Federation it is specified, that a deduction subject are things. Thus, as obosnovanno specifies V.F.Ponka, it is necessary to understand a way of maintenance of execution of obligations which provides the right of the creditor to keep the thing which has appeared at it of the debtor before repayment of a debt under the threat of satisfaction of requirements at the expense of cost of kept property [199] as deduction. Item 128 GK the Russian Federation regulating objects of the civil rights, does not carry to things protected results of intellectual activity and the means of an individualization equal to them (intellectual property). This conclusion proves to be true as well in a science. So, With. V.Sarbash results the following example: Under the author's contract on literary work creation it was provided, that the author will create and will transfer in publishing house the book under heads. The publishing house, under the author's contract, has accepted the obligation to make payment of compensation after transfer of each chapter of the manuscript. In infringement of the specified contract the publishing house has not made payment after delivery by the author of the next chapter of the manuscript. The author has refused to transfer the following chapter, having referred on the right of retention. In this case application by the author of the right of retention, in opinion With. V.Sarbasha, concerning the manuscript it is impossible to recognise correct as a subject of the author's contract is not the material object (thing), and the blessing non-material, though and connected with the certain material carrier. The manuscript as set of sheets of paper does not represent value and is not the publishing house property. Value of the manuscript consists in certain intellectual result. Databases, also being product, do not allow to apply the given way of maintenance of execution of obligations to the relations connected with them. At the same time simplicity and efficiency given obespechitelnoj measures allows to use its design at an establishment of guarantees of execution of the obligations connected with databases in a contractual order. So, for example, the instructions in the contract on transfer of this result of intellectual activity, on refusal in the subsequent updatings or in access to the information in base in case of nonpayment to the developer of the sums caused in the contract will be effectual measures of appropriate execution of obligations the buyer of a database.

Ways of maintenance the executions stated in §5 and §6 chapters 23 GK the Russian Federation are applicable as protective measure for the obligations connected with databases, also. The guarantee and an independent guarantee, undoubtedly, are for today one of the most effective obespechitelnyh measures both in domestic, and in world practice. Their integration and in relations concerning results of intellectual activity is thus observed. So, the guarantee can be applied as an effective way of maintenance of execution of obligations on working out of databases in a case when the customer stands security the developer before the manufacturer. It allows small developers of databases to get access to capacities of manufacturers and to let out an end-product. The customer-guarantor in turn can pick up developers necessary for it who frequently have no specified industrial [200] capacities, but have experience of creation of software products. Besides, having value set of intellectual property, including databases, at legal owners can serve as a good guarantee of execution of obligations the guarantor at reception of credits.

The independent guarantee also is applicable to obligations concerning databases. So, in practice last years the state tenders on and manufacturing of databases for separate sectors of economy are often developed. One of compulsory conditions for participation in them frequently is presence of an independent guarantee of bank at the developer. Other example of an effective utilisation of an independent guarantee under obligations concerning databases will be the guarantee of appropriate execution of the contract on manufacturing and delivery of this result of intellectual activity.

Recent changes of §6 chapters 23 GK the Russian Federation regarding expansion of a circle of persons which can act as the guarantor, undoubtedly, will positively affect obligations on working out of databases. So, an admissibility of delivery of an independent guarantee of execution of obligations on working out of a new database from the organisation of the manufacturer possessing the adjacent right to created base, or the organisations in which the programmers who are directly carrying out working out work, will allow to involve even more effectively means in its working out.

Analyzing ways of maintenance of execution of obligations concerning databases, it is necessary to consider the deposit named in item 329 GK the Russian Federation. It the same as also pledge, is one of the oldest institutes of maintenance of the obligations, known since Roman Law times. Here that is told in the Third book of Institutions of Guy: «Quod arrae nomine datur, argumentum est emptionis et venditionis contractae», that in a translation from Latin means: « That is given in the form of the deposit, is the proof of the concluded contract of purchase »[201 [202]. In the modern Russian right this way of maintenance of execution of obligations is regulated item 380 GK the Russian Federation. As well as in the Roman Law, the deposit serves as the proof of making contract and stands out in maintenance of its execution. Thus, unlike the Roman Law, in the modern domestic law the deposit the sum of money, instead of things admits. With reference to intellectual property sphere given obespechitelnaja the measure has similar obstacles with the penalty to use. The monetary design given obespechitelnoj a measure does not allow to consider specificity of intellectual property right completely. At the same time absence of an interdiction for use of the deposit as a way of maintenance of execution of obligations, in connection with a turn of results of intellectual activity, allows to apply given obespechitelnuju a measure concerning databases.

With reference to protection of the intellectual rights to investigated object of intellectual property special interest represents use of self-defence of the right. With development of the technics, allowing to create new kinds and forms of objects of the copyright and the adjacent rights, legal owners began to search for new ways of their protection against not authorised use. Thus, legal owners, observing a frequent inefficiency of rules of law in protection of the broken intellectual rights, show activity in working out of new means of protection against not authorised copying and use [203]. This variant of protection of the civil rights is supposed item 12 GK the Russian Federation and is realised in practice by application of alternative ways of protection of the right. Example of self-defence of databases inclusion in the computer program necessary for access to the information, the hardware system of the protection which are causing failures in work of a database or making active inquiry of the password at not authorised access to data can be. Other example of application of self-defence of the right is the suspension of current updatings of the given object of intellectual property at infringement by the user of rules of its use or at infringement from the user of the licence contract. Thus, as fairly specifies S.A.Sudarikov, what refined mean for protection of objects of the author's and adjacent rights it would not be used, it will never guarantee completely protection of considered objects. Infringers of the author's and adjacent rights all develop special protivozashchitnye devices more actively, and also harmful computer programs that induces legal owners all more actively to use legal protection frames of intellectual property. However, the right always lags behind technology that minimises effect of a legal protection. Thus, this technological war hardly will sometime end [204 [205]. From this it is possible to draw a conclusion, that application of means of protection of results of intellectual activity reaches the maximum positive effect only at parallel use of legal protection frames. Otherwise degrees of jurisdiction do not find the legal bases for realisation of civil-law protection to authors and manufacturers of databases and frequently refuse in claims [206]. So, the remedy at law specified above in the form of possibility of a suspension of updatings is expedient for including directly in licence agreement. It will allow not only to secure legal owners against claims from users, but also will stimulate them to use of a hi-tech product within the limits of the law.

At the analysis of item 1299 GK the Russian Federation in a context of application of means of protection of databases it is necessary to establish mechanisms of a right protection of the information containing in databases. Regulation of the relations connected with protection of the information, is based on norms of the Federal act from 27.07.2006 № 149-FZ «About the information, information technologies and about information protection». Thus legal interrelation specified FZ with GK the Russian Federation it is possible to track in ч.1 item 1299 GK the Russian Federation. In the given norm it is defined, that means of protection of copyrights any technologies, technical devices or their components supervising access to product, preventing or limiting realisation of actions which are not resolved by the author or other legal owner concerning product admit. Considering, that at the heart of databases there is an information structured definitely, it is possible to approve, that the item 1299 GK the Russian Federation supposes use of means of protection of the information containing in them. Thus, is admissible to consider in a norm complex ch. 1 items 1299 GK the Russian Federation and norms of item 16 FZ №149 regulating protection of the information in the Russian Federation.

As at the heart of databases there is an information structured definitely, it is a basis of the maintenance of a database, and also from the point of view of the civil circulation, forms a basis of their material assets without which the specified result of intellectual activity for commercial practice will be not necessary. Hence, at application of means of protection of databases it is necessary to consider legal regulation of a turn of the information. The part №149 specifies 1 item 16 FZ, that information protection represents acceptance of the legal, organizational and technical measures directed on:

1) maintenance of protection of the information from wrongful access, destruction, modifying, blocking, copying, granting, distribution, and also from other wrongful acts concerning such information;

2) observance of confidentiality of the information of the limited access;

3) realisation of the right to access to the information.

Application of means of protection in interrelation with the measures set forth above allows to expand mechanisms grazhdanskopravovoj protection of databases. The legal owner can not only is effective protect the intellectual rights, in case of infringement specified in FZ №149 norms about information protection, but also to apply special provisions about the civil responsibility, fixed in GK the Russian Federation. Peak efficiency the legal protection will reach at use of means of protection in the relation not only the database maintenance, but also forms of its expression. In particular, expediently, along with protection of the information by protection means to provide mechanisms of protection of a control system of the database providing interrelation with the COMPUTER and possibility of work with data. Similar actions will allow to guarantee as much as possible protection of all set of the intellectual rights of subjects, especially in the conditions of their plurality.

It is necessary to notice, that the special urgency in connection of technical and standard protection frames of the author's and adjacent rights began to be felt with development of a network the Internet and occurrence of modern communication devices. Civil-law protection of databases by the complex ways set forth above will be most effective in practice since it in bolshej degrees reflect specificity of modern intellectual property, unlike different ways of protection of the civil rights provided in item 12 GK the Russian Federation. [207]

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A source: Injushkin Andrey Alekseevich. the CIVIL-LAW mode of databases. The dissertation on competition of a scientific degree of the master of laws. Samara 2018. 2018

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