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§1.1 Information as object of legal regulation

The information - one of the widespread concepts, known to people within many centuries. The initial understanding of the information as data remained up to the middle of 20 years of the twentieth century.

In connection with progress of means of mass and other communications (phone, telegraph, radio, TV, the Internet, etc.) and in particular with growth of volume of transferred messages there was a necessity of their measurement for improvement of conditions of transfer. The first attempts of measurement of quantity of the information concern this time also.

In the probability theory the information was understood not as any messages which people directly or on technical communication channels exchange, and only such which reduce uncertainty at the addressee of the information. Uncertainty exists when because of incompleteness of the information the choice of one of two or bolshego numbers of possibilities is necessary. Such processes take place not only in communications, but also in management, knowledge. Substantial (sense, value) and aksiologichesky (value, utility) aspects of the information are investigated in semantichnyh and pragmatic theories of the information. Except quantity, value and the maintenance, the information (in particular, social) possesses also other properties (reliability, completeness and so forth)

Scientific and technical revolution has sharply increased the importance of a timely exchange of scientific and other knowledge. C the question that such the information, what its nature and as it измерить1 has risen creation of the high-speed computers storing, reformative and giving out [2 [3] considerable volumes of the information, again.

The further development of "information" has gone on we rub to mainstreams: research of various properties of the information, namely, its value, utility, truthfulness, reliability, completeness, depth, accuracy, persuasiveness, dokazatelnosti, novelty, efficiency, an optimality, efficiency, reliability, expressiveness; working out of the mathematical apparatus reflecting the basic properties of the information; use of information methods in sociology, linguistics, biology and other sciences.

In the information theory quantitative definiteness is one of the parties of the objective validity, connected with qualitative definiteness. The information is not only quantity, but also quality, that is it has the maintenance, value, value (utility). But this party of the information far yet does not open the information theory. Experts in the field of the information recognise, that in the doctrine about the information there was a position when will reach considerable success in working out of the quantitative party of concept of the information, but as to the maintenance of concept of the information here yet all is clear enough.

The maintenance of concept "information", apparently from earlier stated has no unequivocal strict definition. But if to make the most general definition of concept "information" it is possible to tell, that the information is one of the basic universal properties of subjects, the phenomena, processes of the objective validity, the person and the operating COMPUTERS created by it, consisting in ability to perceive inwardness and influences of environment and to keep certain time its results, to transform the received data (data) and to transfer [4 [5] results of processing (transformation) to other subjects, the phenomena, processes, cars, людям1.

In materialistic dialectics the information has been defined as one of the basic universal properties of a matter. The concept of the information connected with concept of reflexion (fundamental property of a matter), this one of kinds of realisation of process of reflexion which is material resources of possibility of course of information processes. The information is the reflected variety which the reflecting object receives from object reflected, and not only receives, but also will transform according to the internal organisation. In this sense it is possible to say, that the information has objective character.

The Russian legislation defines the information as «data on persons, subjects, the facts, events, the phenomena and processes irrespective of the form of their granting» [6 [7] [8]. Despite external simplicity of the text, explanation of essence of concept "information" as this concept is wide is required and not always is unequivocally used:

Up to the end 40th years of the nineteenth century the information was understood only as transfer of data from one person to another (or group of people) by means of oral or written speech, transfer of conventional signs (symbols) by means of special transferring and accepting

Devices.

To the middle of 20th years of the twentieth century the information really was understood “as messages and data”, transferred by people oral, written or a different way later the information turns to general scientific concept. General scientific concept the information starts to include “an exchange of data between people, the person and the automatic machine, the automatic machine and the automatic machine; an exchange of signals in an animal and flora; transfer of signs from a cage to a cage, from an organism to an organism (the genetic information)” 1.

The concept of the information of the most various treatment became general scientific, that is the general for all private sciences, and the information approach including set of ideas and a complex of mathematical means, has turned to general scientific means of research [9 [10].

So, for example, a specialised course "Computer science", approving, that terms "information" and "message" are the basic concepts of computer science, simultaneously underlining, that “the maintenance of the specified concepts cannot be reached by means of definition as the last only would reduce these concepts to other not certain basic concepts” [11]. In «the Explanatory dictionary on computer facilities and programming» it is specified: «the information - one of primary concepts not defined within the limits of cybernetics» [12]. It is possible to find tens other definitions In the scientific literature. It means that till now there is no finished system of concepts of types of information.

Article 128 GK the Russian Federation names "information" one of kinds of objects of civil law. She can be characterised following signs:

The information is an ideal component of life, i.e. the blessing non-material, not reduced to those physical objects which act as its carriers (record on a paper, a magnetic tape, etc.);

The information is the blessing not consumed which is exposed only moral, instead of to physical ageing. The important feature of the information - possibility of its practically unlimited duplicating, distribution and transformation of forms of fixing;

The law does not assign to someone of monopoly for possession of use of the information, except for that which acts simultaneously as object of intellectual property or the trade secret falls under concept.

By information consideration in a binding to a subject of the present research the competitor comes back to initial definition

The information, to the given S.I.Ozhegovym, as to the message and the data, as at movement of the information in the course of its creation,

Distributions, transformation and consumption the overwhelming majority of public relations arises concerning the information as data or messages. Many lawyers [13], arguing that such the information in legal system (also as well as experts in the field of the information theory - in information systems), do not define this concept, as spends ^mnogochislennym to misunderstanding and contradictions.

One of key problems of the modern civilised state is formation vysokoorganizovannoj, the productive and viable information environment which represents set of the information requirements of the person intended for satisfaction, a society and the state, material benefits and connected with their creation, use and protection of the public

Relations.

As material benefits information resources - separate documents and separate document files in information systems (libraries, archives, funds, databanks), and also an information infrastructure - set of the centres of processing and the analysis of the information, networks of an information exchange, telecommunication and communication act.

Set of the specified public relations constitutes qualitatively isolated sphere of ability to live of the person, a society and the state - information sphere (environment), i.e. a field of activity connected with creation, transformation and information consumption.

The information sphere is subdivided into three basic areas: creation and distribution of the initial and derivative information; formation of information resources, preparation of information products, granting of information services; information consumption, that is realisation of the right to search, reception, transfer and information use.

At the heart of creation, transformation and information consumption information processes - creations, gathering, processing, accumulation, storage, search, reception, distribution and information consumption in the state and a society, and also processes of creation and application of information systems, information technologies and means of their maintenance, methods and mechanisms of information safety lay.

Term definition «information safety» is given in item 2 FZ from July, 04th 1996 «About participation in the international information exchange» [14]: «information safety is a condition of security of the information environment of the society, formation providing it, use and development in interests of citizens, the organisations, the states».

Maintenance of information safety as complex of purposeful activity of the state and public institutes and structures on revealing, the prevention and counteraction, various threats of safety of the person, a society and the state in the information environment is an obligatory and indispensable condition of effective protection of national interests of Russia.

Maintenance of information safety is considered as an element (subsystem) of maintenance national безопасности1 - systems of the state and public guarantees providing a sustainable development of the country, protection of base values and interests, sources spiritual and material welfare from internal and external threats [15 [16].

It is necessary to notice, that now processes pravotvorcheskoj activity and conceptual judgement of essence and the maintenance both national, and information safety of the Russian Federation go in parallel. After coming into force of the Law of the Russian Federation «O safety» (1992) where in the list of separate kinds of safety (state, military, economic, etc.) it it is fixed the term «information safety» it was accepted already more than 30 standard legal acts regulating public relations, in particular, in the field of protection of the information. But working out of the doctrine (concept) of information safety - the political document, called to reflect system of sights officially accepted in the state on information safety, character of threats to national interests in information sphere, the purpose and strategy of the state in the field of its maintenance is not finished.

In the Russian scientific literature it is underlined, that in modern conditions maintenance of information safety gets exclusively great value, as realisation of the major threat of national safety of the country tending to increase and expansion - operating-technical penetration of foreign special services on objects of safety of Russia (the state governing bodies, political parties, financial institutions, the industrial enterprises, the research organisations, etc.) occurs in information среде1. It is natural, that scientific and technical progress gives the chance to realisation of threats economic, military and to other components of national safety will repeatedly increase.

At the same time information safety represents independent sphere of national safety in which it is necessary to provide protection of the information, information resources, information infrastructure, to create optimum conditions for satisfaction of information requirements of the person, a society and the state. Here, naturally, the establishment of optimum balance between requirements for free information interchange and necessary restriction of its distribution is required. C by this purpose for last years in Russia it is developed and the complex of legal measures on maintenance of information safety is realised.

There is a formation of is standard-legal maintenance of information safety. «Laws of the Russian Federation are passed About the state secret», «About the information, information and information protection» [17 [18] [19], «About communication» [20], «About participation in the international information exchange», Fundamentals of legislation of the Russian Federation about Archival fund and archives, works on creation of mechanisms of their realisation are developed, preparation of some the bills regulating activity of subjects in information sphere is finished. For example, has taken effect long-awaited FZ «About a trade secret» 1. A number of practical actions for perfection of system of protection of the information in bodies, in establishments and at the enterprises not only with the state form the property, but also from the private is carried out. The successful decision of some question of maintenance of information safety is promoted by creation of some specialised organizational and technical systems in the field of protection of the information and certification of protection frames of the information.

The analysis of a modern condition of the information environment in Russia shows, that conditions of political and social and economic development of the country cause an aggravation of contradictions between requirements of a society for expansion of free information interchange and necessity of preservation of separate restrictions on its distribution: absence of effective controlling instruments of information relations in a society and the state results in many negative consequences; neediness of the rights of citizens on the information, a manipulation the information causes inadequate reaction of the population and in some cases leads to political instability in a society.

The public relations which are arising in the field of creation and distribution of the information and coming under to legal regulation, come to light as a result of the analysis of actions of subjects concerning creation and distribution of different types of information. Subjects are founders, manufacturers and distributors of the information (citizens and their associations, scientists and experts, journalists and observers, the organisations, the enterprises and establishments, local governments, public authorities).

C the account of features of the legal regime [21 [22], created and

The extended information can be divided on two groups: opened (freely extended in a society), and the limited access (which distribution is possible only in the conditions of confidentiality or privacy).

___________________________ the Created information ____________________

The open information The information of the limited access
The information created in The state secret
Creativity process
The obligatory The official secret
The documented

The information

Diplomas Trade secret
The mass information Personal data
Other open information Other information of the limited access

Proceeding from a subject of the given research, we will analyse the basic approaches to regulation of relations in the field of information protection (especially conceptual device and working out of lists of the information carried to different kinds of secrets). First of all, along with the state, office, bank secret, we will consider a trade secret.

The concept "trade secret" consists of two parts which in Russian are treated as follows: commerce (from an armour. commercium) - the auction, trade, trading gathering, merchant промыслы1.

The term "secret" has two values, in the first case it that is not learnt yet, is not solved, did not become known or is yet accessible to knowledge (secrets of the nature, space, etc.), in the second - "secret" is something is hidden hranimoe, that hide from someone with intention, conceal »[23 [24] [25] [26]. So, the term"trade secret"means, something is reserved hranimoe, hidden from

Others, in this case - during trading operations.

The Petersburg lawyer V.Rosenberg in the beginning of the XX-th century expressed opinion that the commercial (trading) secret is a part of trade secret, including in last concept also secret industrial (factory) 1. Under industrial secret it was understood privnesenie something creation of the blessings new in process, and as trading secret - elements of individuality, exclusiveness (for example, knowledge of places of purchase of the goods, lists of buyers etc.). All features peculiar to the given enterprise, individual details of its commercial activity can be a subject of such secret.

Fairly believing, that the industrial, commercial secret directly corresponds with the individual personal rights, that ohranenie a secret there is ohranenie the rights of the proprietor to the intangible benefits, and a disclosure - infringement of this right, V.Rosenberg approved, that secret disclosure is wrongful intrusion into sphere of another's individual work, that is infringement of the personal rights.

The theory of the individual personal rights, V.Rosenberg marked, has been proved by English lawyer Blekstonom and has received development in works Kolera and Girke. It is adjoined by many authors, mentioning a theme about protection of industrial secret, such, as Frindlender, Rosental, Lobe, Keller and others. Under their doctrine each person has the individual personal right and the right of its individual display, therefore products of its physical and spiritual forces should be fixed to it in the law. Activity of the industrialist is directed on acquisition probably bolshej clientele and by degree of achievement of the purpose is caused its economic and a social status. Means to the purpose is creative activity which has individual character. Exposure of the secret constituting result of such work, is infringement of the personal rights. Similarly displays of individual properties

The enterprises can be object legal защиты1.

The trade secret arises when it is of interest for commerce.

Experts notice [27 [28], that the wrong understanding of this question leads to that along with a trade secret quite often allocate industrial (or industrial) secret, meaning under last new technologies, "know-how" etc., that is that is a trade secret as such data represent for the enterprise value in respect of commerce.

To formulate concept of a trade secret it is possible by allocation of information files, access to which should be limited in connection with possible aggrieving in case of disclosure (abduction, leak).

In 1990 «the Law of RSFSR has been passed About the property» in item 4 item 2 has been defined, that by property legal objects, along with the enterprises, property complexes, the ground areas, securities, other property, are also products intellectual and creative activity in manufacture sphere, including "know-how" and trading secrets [29].

The proprietor of objects of intellectual property at own discretion owns, uses and disposes of them, thus valuable interests of the owner can be provided with two basic ways. It can fix the right to results of their use by reception of patents, licences, etc. But with the same success can, having coded from other subjects of managing activity the achievements in certain sphere to provide

Advantage in enterprise activity and to receive additional incomes.

Thus, the essence of a trade secret consists in possibility at the expense of exclusive possession of certain more effective ways of manufacture and production realisation to receive the raised profit.

Hence, the trade secret is an information which has the valid or potential commercial value owing to uncertainty to its third parties, to it there is no easy approach legally and the owner of the information takes measures to protection of its confidentiality (Item 139 GK the Russian Federation).

In the modern Russian legislation necessity of creation and perfection of institute [30] trade secrets do not cause in anybody doubt. After fastening of its basic rules in GK the Russian Federation the given institute, probably, was generated and further, will be improved in the details. The ultimate goal of institute of a trade secret - maintenance of safety of concrete managing subjects and as consequence of it is maintenance of economic safety of a society as a whole.

Confirming to it it is necessary to notice, that the concept of secret of economy is inevitably connected with a certain pattern of ownership though this dependence far is not always shown in the open form. The Civil code and other laws of the Russian Federation admits, that owners of the information constituting a trade secret, there can be any citizens or legal bodies. But, proceeding from the nature of this secret which follows from the individual personal rights, the recognition of such position when that information, which would be considered as a trade secret only, possessing would be more consecutive

The signs specified in item 139 GK the Russian Federation, would be in a private property.

Thus, as trade secret one more sign it is possible to name its objectively existing interrelation with a private pattern of ownership. This sign is deduced from the following statement:

The information constituting a trade secret, should is in a private property.

It is necessary to notice, that commercial secrets exist and in economy public sector. Fastening and development of the rights of the state on such secrets in our country have the history.

In 1996 norms which provide responsibility for illegal reception and disclosure of the data constituting commercial or bank тайну1 have been brought in the criminal legislation.

Now, commercial secrets are interconnected with various patterns of ownership. The Russian Federation admit private, state, municipal and other patterns of ownership. In the event that these secrets are the state property, they constitute the official secret which is understood as the information having “... The valid or potential commercial value owing to uncertainty its third parties, to it do not have an easy approach legally and the owner of the information takes measures to protection of its confidentiality”.

Thus, though the legislator does not do now distinction between commercial and the official secret, however distinction between them consists in property relations: the trade secret - is inherent in not state pattern of ownership, office - state. The data concerning the official secret, are not usually a subject of independent transactions, however their disclosure can cause [31 [32] [33] property damage of the organisation and harm of its business reputation. The objects carried to a trade secret, can be a subject of various contracts: articles of incorporation, investment, contracts on transfer of scientific and technical production, the contract on rendering vozmezdnyh services, the contract of purchase. At the same time, considering uniform essence commercial and the official secret, it is possible to make a substantiated conclusion that the official secret is private display of a trade secret.

Coming back to maintenance of safety commercial and the official secret on objects of strategic value, we will note certain specificity.

The matter is that absence of the control over commercial activity of private concerns in the field of information safety can lead to a considerable damage first of all to owners of these firms. It is necessary to notice, that commercial and the official secret on objects of a state ownership possesses a number of specific lines:

The certain part of the data constituting a trade secret on objects of a state ownership, infringes on political, economic and military interests of the Russian Federation;

To a trade secret on objects there are constant, steady aspirations of foreign special services, the organisations and firms.

Considering, that the essence of commercial (office) secret on objects (despite specificity) remains invariable - it serves for extraction of the maximum profit to its proprietor (the private person, a group of persons or the state), the damage (along with the proprietor) bears the state.

As is known, in the scientific literature concept "state secret" it is developed much earlier, than concept "trade secret". Therefore it is interesting to consider their parity for the further disclosing of a subject of the present research.

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A source: Krikun Lidiya Aleksandrovna. CIVIL-LAW PROTECTION of the TRADE SECRET In the RUSSIAN FEDERATION. The dissertation on competition of a scientific degree of the master of laws. Moscow. 2005
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