preconditions of occurrence and development of the computer programs with the open initial text

The statement fixed in point 1 of the Okinavsky Charter of the Global information society, that «information-communication technologies (IKT) are one of the most important factors influencing formation of a society of the XXI-st century.

Their revolutionary influence concerns a way of life of people, their formation and work, and also interaction of the government and a civil society. IT quickly become the vital stimulus of development of economic» [61] as it is impossible accurately reflects a vector of movement of a modern information society and economic as a whole. Today it is difficult to present itself a modern society without constantly developing digital technologies, the Internet, communication media and the communication, the new program decisions accompanying daily existence of each of us. As has noted I.A.sable: « Development information, first of all digital, technologies, and also that the means applied in these technologies, became cheaper and more accessible, have led to that the system of public relations developing in connection with their use has changed considerably. Those postulates, which else some time were considered firm back, have swayed. It is normal for social progress »[62].

Last years the network the Internet became the basic environment of distribution of modern program decisions. By 2014 the number of the users regularly using the Internet, was about three billions persons, that is more than third of population of the Earth [63]. Thus one of the basic complexities in legal regulation development in Internet sphere is necessity of the account of numerous technical features of functioning of a network. The legislator is not free in a choice of decisions - in many respects they should be defined by an available infrastructure and possibilities of use of existing communications. Ignoring of this technical aspect or the inattentive relation to it will lead to inability of the accepted law to carry out the appointment, and it is even worse, than absence of the law [64]. Thus it is necessary to notice, that development of the technological possibilities applied in is information -

Telecommunication network it is so prompt, that legislative regulation simply is not in time behind technical progress. I.V.ponkin in the research about features of a network the Internet, including marks about complexities of designing of development of the legislation on protection of copyrights in virtual space [65].

In spite of the fact that officially year of a birth of the Internet considers 1969 when the first communication session between the two first servers ARPANET which is all on distance of 640 km from each other has been successfully started, in the USSR the network the Internet has appeared only after more than twenty years - in 1990. At that time the scientific network of Institute of an atomic energy of I.V.Kurchatova and IPK Minavtoproma was connected for the first time to the Internet, and in the international database the first domain of Soviet Union «.su» has been registered. "Whether" In 1994 in the international database the domain of the Russian Federation has been registered already. Probably, in view of later joining of Russia to a worldnet the Internet and origin of so-called "Runet" (a Russian-speaking part of a worldnet the Internet) and some program decisions have come to Russia after other states.

The first programs with OIT have appeared in the USA in the eighties last century. Working out of such programs at that time did not represent material assets for their authors and carried exclusively scientific interest [66]. Subsequently their so prompt development and popularisation became a consequence mass tsifrovizatsii to the information and fast distribution of results of intellectual activity by means of a network the Internet. The network the Internet substantially functions on programs with OIT. For example, DNS [67] - system which puts names of domains in conformity to IP-addresses, the post Internet service «sendmail» represents open projects, the Internet - a site «Yahoo!» Leans against operational systems with the open initial text (FreeBSD) and the same web server (Apache), uses for delivery to readers of a dynamic content language of scenarios with the open initial text (Perl) [68].

In the USA activity on working out of programs with OIT arose within the precincts of such world universities, as the Massachusetsky institute of technology (USA), the Californian university in Berkeleys (USA). The specified activity as it has already been mentioned, had strictly scientific character and as any scientific result should be verified, that is prove to be true other researchers and to be opened for criticism access to initial texts of programs has been opened. For example, the initial texts of programs written in the Massachusetsky institute of technology, were popular, employees of other universities used their initial texts and sent them corrections. Thus, process of working out of programs was more essentially similar to scientific process: the scientist took existing programs, corrected them according to the ideas and published the corrected (modified) programs - new result of intellectual activity. Thus, as some authors mark, freedom of programs is the purpose, and the open initial text - means for achievement of this purpose [69]. Under freedom of programs, it appears, the author of the statement means the right to processing (updating) of the program which is the integral component of all known "free" licences. That is the right to program processing as a certain element of free-hand concerning such program. The specified arguments somewhat prove to be true in the United Nations Report «freely accessible software with open initial codes: the policy and consequences for development» where it is specified, that exists two complementary ways of definition of programs with OIT. First, they can be defined from the point of view of the rights which they give to users; Secondly, from the point of view of how these rights are carried out, that is from the point of view of distribution of the initial text among all users [70 [71]. A.I.Savelyev in the researches gives an example for understanding of a principle of the open initial text of the program, marking: «... It makes sense to imagine an orchestra consisting of set of musicians, being in various corners of the world, everyone which composes them and performs the part of the general symphony. Thus such orchestra has the world recognition and the popularity comparable with most known


Classical orchestras ».

At the same time the "know-how" of computers developed not less actively and in the conditions of huge variety of architecture of computers of the program began to constitute an integral part of the car in due course. Manufacturers of the COMPUTER delivered the devices together with the cores already preestablished, programs. Thus COMPUTER manufacture was high technology, but, at the heart of the, the commercial enterprise.

In a situation when programs are object of sale on a level with use subjects, on them any more only laws of scientific working out, but also property of material subjects with which can trade, exchange, the right of possession and usings which are necessary for protecting legislatively automatically extend. Besides, the scale of development of operational systems and compilers of programming languages has led to occurrence of considerable economic expenses for their working out, there was a competitive struggle between developers of programs. So, creation and realisation of programs began to pursue not only scientific, but also commercial objectives. To protect the commercial interests, manufacturers of programs have started to close access to the initial text and to extend programs in the form of an objective code. As a result the licensee could use funktsional programs, but could not make to it any changes, finish, study, change, correct errors or use it as a part of the program. Manufacturers of programs began to enter legal restrictions on modification of the initial text and to form the corresponding policy concerning use of programs. In 1976 Bil Gates, one of founders and shareholders of company Microsoft, has published «the Post card to enthusiasts» [72] in which openly convicted so-called "hackers" of theft of programs: «Why so? The community of programmers should know, that it simply steals the software. You buy« iron »for the computer, but the software share with all gift. Who in that case will take care of that developers cashed for the work?» [73].

In 1983 Richard Mettju Stollmen [74] - the programmer of laboratory of an artificial intellect of Massachusetsky technological university [75], has based the project «GNU» for the purpose of creation of the operational system giving to users possibility to study the initial text of the program and to make to it changes if necessary. R.M.Stollmen's this project has decided to create free analogue of operational system "UNIX", the rights on which belong to one of the largest American telecommunication companies and media conglomerates AT&T Inc. In some sources it is mentioned, that the history of the project of R.M.Stollmena has begun still in the late seventies when, having faced a problem of the press of documents on the printer, R.M.Stollmen has decided to write the small and convenient program, allowing to notify users of the printer on its malfunction. However, it has faced a problem as could not get access to the initial test of drivers of the printer - they were accessible to users only in the form of objective codes [76].

The name of project GNU, represents an abbreviation «GNU is not Unix» [77]. In process of development and project expansion there was a necessity for creation of the special organisation which would be engaged in attraction of means from sponsors and carried out organizational functions. So, in 1985 the fund «Free Software Foundation» [78] (hereinafter - "Fund FSF") has been founded. Fund FSF is the noncommercial organisation which main objective of activity is support of so-called movement in support of "free" programs. For today in the world exists four funds: Fund FSF already mentioned above based in 1985 was the first fund, the fund based in 2001 «Free Software Foundation Europe» [79], in 2003 fund «Free Software Foundation of India» [80] became the second fund and, at last, in 2005 there was a fund «Free Software Foundation Latin America» [81].

To state essence of "free" programs of R.M.Stollmenom the basic criteria, so-called principles according to which the program probably to carry to a category of "free" have been allocated. Each of resulted below criteria is called as "freedom" which in the given context assumes absence of necessity of reception of the additional permission from the legal owner or the author (group of authors) programs on fulfilment of the specified actions:

- (0 freedom) licence agreement about according a right of use of the "free" program should not limit the licensee neither in the ways and use areas, nor on use territory;

- (1 freedom) the licensee should have the right of access to the initial text of the program that will allow it to study the program and to process its initial text;

- (2 freedom) the licensee should have the right of copying and distributions of the program in favour of the third parties in any lawful ways;

- (3 freedom) the licensee should have the right of copying and distributions of the processed program (created at use or on the basis of the "free" program) in favour of the third parties [82].

By 1990 project GNU possessed practical all components necessary for operational system: compilers, interpreters, compilers, debugging programs, libraries etc. However, there was no main component without which the operational system cannot function - a kernel. It is necessary to understand a part of the operational system as "kernel", carrying out the most important the problem, connected with safety, management of scheduling of problems, distribution of memory and system resources, that is providing base functionality of the given operational system. As such kernel in 1992 kernel Linux created on year before the student of University of Helsinki Linusom Benediktom Torvaldsom [83] has been chosen. Thanks to cooperation Linusa Torvaldsa and the M. River Stollmena there was the operational system "GNU/Linux" usually called simply «Linux» which, according to some authors, is the most known and successful project for all history of existence of movement for programs with OIT [84]. The separate attention and explanatories is deserved by creation and development of workings out of kernel Linux. It is remarkable, that project Linux, was one of the first unique projects created on model of "free" programs. The matter is that in creation of kernel Linux in 1 991 year, thanks to that the initial text of a kernel remained opened, and also thanks to a wide circulation of a network the Internet, many developers had an opportunity independently to compile and test this kernel, to participate in discussion and correction of errors, and also to send corrections and additions to initial texts Linusa Torvaldsa. Success Linux as operational system and its wide use has led to mass interest from the commercial organisations - developers of programs and computer devices. Now systems Linux reliably hold in the lead positions in the market of mobile devices, Internet servers and the most powerful supercomputers. According to the researches spent by a financial conglomerate, one of the world's largest commercial banks Goldman Sachs - as a whole, market share Linux current day among electronic devices constitutes about 42 % [85].

It is no wonder, that R.M.Stollmen could not stop on the project of creation of "free" operational system. The similar form of distribution and an order of use of programs demanded presence of the corresponding legal mechanism supporting idea put in pawn in it. Therefore creation of the special licence agreements known as licence GNU GPL became R.M.Stollmena's second, not less important project. The specified licences represent the licence agreements concluded between the legal owner and the user and including conditions of use of programs with OIT. It is interesting, that R.M.Stollmen does not give literal definition of the "free" program or the "free" licence, specifying only on signs which the program and the licence contract should possess, accordingly [86]. It is necessary to notice, that in the Russian right between terms «the licence contract» and "licence" it is impossible to put an equal-sign. For example, as marks A.JU. Kuvyrkova, according to the legislation of the Russian Federation, "licence" unlike «the licence contract» is the right of use of result of intellectual activity on certain conditions. Granting of the specified right (licence) is a subject of the licence contract [87]. Thus in the majority of "free" licences the agreement text is defined as "licence". In this sense in used definitions to Russia and the USA there is a certain difference.

In more details about features of licence agreements GNU GPL it will be considered in the second chapter of the present dissertational research.

The second organisation which is carrying out the activity in the field of support and advancement of programs with OIT, the noncommercial organisation «Open Source Initiative» [88] (hereinafter - "Organization OSI") is. For the first time the term "opened" concerning programs [89], has been used in 1998 by its founders - programmers Eric Rejmondom and Bruce Perensom [90] as alternative to the term "free" [91]. The basic idea of sights of founders of Organization OSI was simple: when programmers can read, study and change the initial text of the program - it develops. Unlike Fund FSF, Organization OSI in relation to programs with OIT uses the term "open" programs. The difference between the "open" and "free" programs consists in the following: Fund FSF mission is assistance in advancement of "free" programs for the purpose of the maximum replacement from the civil circulation of the programs extended on conditions vozmezdnosti [92], while purpose of Organization OSI is granting of the maximum access to possibilities of programs with OIT for all comers, including for business community [93]. In this occasion Bruce Perens, one of Organization OSI founders, in a documentary film «Revolution OS» marks: «Richard thinks, that all software should be free, and I consider, that the free and not free software can co-exist. This unique distinction» [94]. Analyzing Fund FSF activity, the specified organisation, really is represented, that, in bolshej degrees pursues moral aspect concerning access to the initial text of the program, rather than Organization OSI.

Organization OSI concept is put in pawn in ten qualifying signs characterising the programs with OIT [95]:

1. Free distribution of the program: the licence should not contain a condition about an interdiction to the third parties to extend copies of the program by sale or transfer by a different way of a copy of the program. Thus licence agreement should not contain a condition about payment of compensation for granting of such right. However, it is necessary to notice, that in a case when the programs including of some objects of intellectual property (the complex software) in this case absence of compatibility of the licence agreements accompanying included in structure of such programs elements can become an obstacle extend;

2. The initial text of the program: according to item 1261 GK the Russian Federation the initial text and an objective code of the program are protected by the copyright. Modification of the initial text of the program without the consent of the legal owner will be considered as infringement of its exclusive right. According to the specified principle, the program should: to include the initial text (instructions on access to the initial text of the program), possibility of its further distribution should give, including as a part of other program, the program should extend in a network the Internet without payment of licence compensation to the licensor. The initial text of the program should be stated in such form which would allow the programmer (licensee) to carry out its further processing. Granting of the initial text of the program stated in the confused kind so, that it is impossible to understand it or distortion of the initial text - is inadmissible;

3. Derivative products: the licence should provide the right of the licensee to make change in the program and to create derivative programs, and also the right to licence the modified version of the program on the terms of the initial licence contract. It is necessary to underline, that according a right of use of the derivative program on the terms of the initial licence contract, is the right, instead of a duty of the author of such program, that is the given condition has optional character [96];

4. Cleanliness of the initial text: the licence can forbid the further distribution of the modified version of the initial text if only it supposes possibility of distribution of updatings (so-called «a patch of files») which modify the initial text during program configuration. Thus the licence can contain the conditions demanding that such modified program extended under other name or version number, than initial. Such condition is directed on protection of reputation of the initial author. Actually given condition pursues the same aims, as the personal non-property right of the author to reputation protection, but is adapted for the features of relations connected with working out and distribution of programs with OIT [97];

5. An interdiction for discrimination in relation to certain persons or groups of persons: licence conditions cannot limit the right of use of the program only to certain categories of persons. For example, an interdiction for program use by the commercial or noncommercial organisations. The given qualifying sign pursues the granting aim to as much as possible wide range of persons of possibility of use of the program with OIT for possibility of its all-around development and perfection. It is necessary to notice, that programs with OIT often interpret as noncommercial programs that is error. Many Internet organisations and Internet sites, such as Google.com, Yahoo.com and Amazon.com, use operational systems and programs on the basis of programs with OIT [98];

6. Discrimination bar of claim by lapse of time on application sphere: the licence should not contain the positions limiting possibilities on use of programs in certain scopes, for example, to limit possibility of use exclusively in the scientific purposes or to forbid application in certain branches;

7. Distribution of action of the licence: the rights given by licence agreement, should to extend on all persons to whom the program has been given. Thus such rights should be given to purchasers of these rights without necessity of fulfilment from their party of any additional actions. As Bruce Perens marks: «you are not obliged to sign or post the consent with the licence to use the program or to make to it changes. Instead the licence should be applied to you automatically owing to the fact of fulfilment of such actions» [99]. In other words, the consent of the licensee with conditions of the licence contract should be expressed by fulfilment of implicative actions from the licensee (for example, the beginning of use of the program);

8. The licence should not concern a certain product: the specified requirement provides, that a complex of the rights by which the licensee of the program according to licence conditions is allocated, cannot be limited or expanded depending on that, it uses the program with OIT as a part of other modified program or the program as that;

9. The licence should not limit distribution of other programs: the requirement that other programs extended in the same environment, as the licensed program, concerned a category of programs with OIT is inadmissible;

10. The licence should be technologically neutral: program use cannot be put in dependence on use of certain technology or "interface" [100].

Successful realisation of the project in the field of working out of programs with OIT is project Debian (USA) starting on August, 16th, 1993. Key idea of the given project was creation of high-grade operational system which will include the programs extended on the terms of "free" and "open" licences. Project sources had a small group of developers led by Ienom Merdokom [101]. For today development of the given project is supported by noncommercial organisation SPI Inc. [102], created specially for the project and located in New York. Users of operational system Debian are not only physical persons, but also various educational institutions, the commercial and noncommercial organisations, the governmental organisations of the different states. Among some of them it is possible to allocate: University of Zurich ( Zurich, Switzerland), the Cambridge university (United Kingdom), the Harward university (USA), the International school of Hiroshima (Japan), the Bureau concerning immigrations (Philippines), National institute of statistics and economic researches, INSEE (France), Department of the taxation of Vermont (the State of Vermont, the USA) and others [103].

Last years of the program with OIT is in the centre of attention and have wide social and economic value. Possibility of their application is actively discussed in the international organisations. For example, the Organization of the Incorporated nations on trade and development in the report notices, that the free accessible software with the open initial text became the integral component of global technological [104 environment. The governments of the various states develop introduction initiatives in the state authorities use of "free" and "open" programs. For today it is possible to note active enough tendency of transition of the state bodies of Europe, Northern and the South America, and also Aziatskotihookeansky region on programs with OIT. It is remarkable, that such interest from the state bodies of the majority of the countries of the world, svjazanna not only for the purpose of economy of budgetary funds, but also for the purpose of preservation and maintenance of safety of the state.

The European union (hereinafter - "EU") at the state level gives special attention to introduction of programs with OIT. One of examples, project IDABAC [105] started in 2001 - the European commission [106] is 2005. Within the limits of the given project, for strengthening of interaction and development of an information society, the European commission initiated research of a question of working out of own typical licence (licence agreement) for the states participating in EU. The purpose of the given licence is as protection of interests of authors by preservation behind them copyrights, and interests of users by granting of all volume of the fundamental laws specified in the licence by it. As a result, in 2007 licence European Union Public Licence (hereinafter - the European licence) has been developed. Minister of Internal Affairs G ermanii Otto SHilli in 2002 has noted: « We raise level of computer safety, avoiding a monoculture, and we lower dependence on the unique supplier »[107].

So, by working out of the European licence following requirements have been observed:

1. The right of use of the program extended on the terms of the European licence should be given on a gratuitous basis;

2. In terminology of the Civil code of the Russian Federation, according to conditions of the European licence, to the licensee should be accorded a right program uses by any ways and for any purposes, including by its reproduction, modification, public display and finishing to general data (through a network the Internet), distributions of the program and its copies, delivery in hire and rent, sublicensings (within corresponding ways of use);

3. The European licence should correspond to the general approaches accepted in the states participants of the European union concerning applied responsibility and guarantees;

4. The European licence should carry out protection against conditions of distribution of the programs meeting requirements «copyleft» or «sharealike» [108];

5. All linguistic versions of the European licence should have the identical jural significance and to be approved the European commission;

6. Conditions of the European licence should correspond to the general European standards about the copyright and corresponding terminology.

Certainly, taking into account universal tendencies of development of the market of information technologies, programs with OIT bring the invaluable contribution to development of the world industry of software products. The wide potential which programs with OIT possess, substantially is a push for development not only the state and scientifically-educational sphere, but also development of area of programming as a whole. In spite of the fact that some Russian legal owners show rigid resistance to idea of distribution of programs on the terms of "free" licences, approving, that it «destiny of those who does not see prospect of commercial success» [109], such position is confuted by a number of successful projects in this area, some of which have been mentioned above. In the field of the mobile technologies, operational system Android created on the basis of kernel Linux is one of most dynamically developing operational systems for mobile phones and smart phones and is the direct competitor of such world leaders in the field of the industry of information technologies as Microsoft and Apple. On the basis of operational system Android the mobile devices which are let out by such companies as Samsung, Intel, Sony and others work. According to some researches, the share occupied with operational system Android in the market of mobile operational systems for the second quarter 2014, has constituted 85 % [110].

For last decade in Russia at the state level documents which including concern questions of use of programs with OIT have been developed. Among them «the Concept of development of working out and use of the free software in the Russian Federation» [111], «the Concept of use of information technologies in activity of federal public authorities till 2010» [112], «the Concept of regional information till 2010» [113], the Federal target program «Electronic Russia (2002-2010)» [114], «the Plan of transition of federal enforcement authorities and federal budgetary establishments for uses of the free software for 2011-2015» [115], the Government program «the Information society» (2011 - 2020гг.) [116] and others.

Considerable advantage to the state at use of programs with OIT is possibility of creation and the independent control of the independent technological environment which will work in strategically important areas: military men, educational, social, etc. After all mass use of programs where access to the initial text is closed also which in the majority belong to foreign legal owners (for example, Microsoft, Apple), puts a society in certain dependence that represents already threat for the country sovereignty. An example of creation of such independent technological environment, the reference domestic environment of assemblage of operational system and appendices on the "free" software (national operational system) which creation is planned within the limits of already mentioned above the Government program «the Information society» (2011 - 2020гг is.) [117].

Other of specified above concepts - «the Concept of development of working out and use of the free software in the Russian Federation», assumes creation of the conditions, providing to public authorities, citizens and subjects of economic activities of possibility of reception of advantages in performance of the problems at use of "free" programs in the scales corresponding to world level, maintenance of perspective directions of development of branch of information technologies, and also revealing and assistance to the decision of problems of branch of working out of programs with OIT. In more details offers and expected results of the specified Concept will be considered in the third chapter of the present dissertational research.

Important advantage of use of programs with OIT is possibility of their introduction in educational sector. The order of the Government of the Russian Federation from October, 18th, 2007 №1447-r «About acquisition for educational institutions of the programs entering into a standard (base) package of the software and an additional package of the specialised software, and also about introduction of system of an exception of access to the Internet resources incompatible with problems of formation and education of pupils» [118] (hereinafter - «the Order №1447-r») has been approved the list of the special measures directed on improvement of process of training in educational institutions of subjects of the Russian Federation, and also municipal educational institutions, at the expense of introduction of variety of software. Among other, with the subparagraph "in" Order point 1 №1447-r has been established to provide working out and introduction in educational institutions of programs with OIT according to resulted on hand №1447-r recommendations. Including, in already mentioned in the present paragraph of the Government program «Information society» (2011 - 2020гг.), a number of the offers directed on introduction and adaptation in educational institutions of specified programs also contains.

Use and introduction at the state level of programs with OIT is one of the central problems who bears in itself invaluable advantages both to information safety of the state, and to a society as a whole. First, access to the initial text of the program allows to find out and eliminate vulnerable points and defects of the program therefore its work will be more safe and reliable. Secondly, reduction of dependence on import of programs of foreign legal owners. Thirdly, possibility of increase in number of creation of domestic programs and increase in capitalisation at the expense of such workings out. Fourthly, this increase of level of struggle against illegal use of programs and infringement of the intellectual rights. Fifthly, certainly, it is possibility of savings of means at use of programs with OIT as in most cases, the right of use of such programs, is given on a gratuitous basis.

Foreign state structures also highly appreciate advantages from use of programs with OIT. For example, in the Chinese academy of a science («ISCAS»), at support and financing from the state, in 1999 the operational system «Red Flag Linux» has been developed. It is necessary to notice, that China is last years a citadel of programs with OIT. Use of the specified programs grows every year. The basic motive power to it is the Chinese government which purpose is creation of the powerful national program industry, for increase of higher level of independence of foreign legal owners. Some time back Chinese government has been declared, that it will be forbidden to its establishments to buy programs of foreign manufacture, thereby it actually eliminates the basic international legal owners of programs, such as Microsoft and Oracle [119].

France, G ermanija and the Great Britain are leaders in the field of introduction and advancement with OIT. In the document created at support of EU «Association of Europe: Importance of functional compatibility of the governmental electronic services» is given a critical estimation of a previous stage of development which «has led to creation closed, vertical, inaccessible and frequently private information systems» [120]. French customs and tax organs have passed to use of operational system Linux, including from safety reasons. In France in 2007 Practical guidance on use of programs with an open initial code in official bodies »has been let out«. In Germany at a realisation stage are a number of the state initiatives devoted to introduction of programs with OIT. In particular, operational system Linux actively introduce in police G ermanii, the Ministry of Finance and the Bundestag. General policy G ermanii in this direction is that, that is supposed, that programs with OIT should be used everywhere where thanking their use probably to reduce expenses. Italy also is one of the leading European states supporting use of programs with OIT. For example, the Constitutional Court of Italy has passed the decision that use of corresponding programs in the state structures does not break norm of the Constitution of Italy and the Law on protection of a competition [121].

It is necessary to note achievement of the United States of America in a scope of programs with OIT, after all the USA is alma-mater the leading world organisations popularising given type of programs, for example, in the name of Fund FSF and Organization OSI. Among the state structures of the USA it is possible to note the Ministry of Defence of the USA which creates last years for itself operational system and appendices to it on the basis of programs with OIT.

The advantages resulted in the present paragraph from use of programs with OIT, and also a number of successful domestic and international projects on their introduction, prove the modern legislative initiatives directed on their adaptation. The problem of the present paragraph consists in that at consideration of the above-stated advantages from use of programs with OIT, to designate all importance and an urgency of creation and maintenance of work of the corresponding legal mechanism, allowing correct application of the specified programs. Such legal mechanism in the international practice are the so-called "free" licences representing a certain compromise between desire of the legal owner of the program to accord to the third parties a right of use of the initial text of the program and legal borders in which the specified actions can be realised. As marks E.A.

Vojnikanis: «the History of development of free licences is, first of all, opposition history: between the habitual economic models, which else recently were considered universal, and absolutely new which only win the place in economy and public consciousness. But is important also that it also history more or less successful attempt to find legal frameworks in which there can be old and new paradigms of regulation» [122]. In the third paragraph of the present chapter the author will separately consider some "free" licences applied now in the international practice.

As a result of the research carried out in chapter 1, in our opinion, it is possible to draw following conclusions:

First, the question on possibility of granting of a right protection to separate elements of the program, as to independent objects of the copyright is of interest. It is a question of such elements as: the initial text, an objective code, audiovisual displays and preparatory materials. Does not cause doubts, that the initial text, the documentation and audiovisual displays of the program can be protected by the copyright as independent and independent products as the specified elements grow out of creative activity of the person. Possibility of granting independent avtorskopravovoj protection to an objective code of the program in the legal doctrine not always finds a common opinion. This results from the fact that the objective code is not result of activity of the person, and result of work of the program - the compiler which does not include any participation of the author. However, what there is an objective code in a context of a discussed question? It is known, that the licensee - the end user, acquires the right of use of the program which is given to it already in the form of an objective code to clear its computer. As has fairly noticed A.I.Savelyev: « The computer program in an objective code, is more often a subject of illegal reproduction, and non-recognition of the copyright to such code would create considerable difficulties in protection against a piracy »[123]. It is possible to tell, that the objective code grows out of creative activity of the author (group of authors), expressed on"language"which is clear to the computer. On the given question, in the present work the example from judiciary practice of the United States of America according to which the conclusion that the objective code is certain"conductor"between instructions of the initial text and the computer has been drawn is resulted. According to positions of the legislation of the Russian Federation (the item 1261 GK), the United States of America (paragraph 102 () chapters 17 of the Code of the USA), and also the European certificates (point 2 of article 1 of the Instruction 2009/24/EC the European Parliament and Council from April, 23rd, 2009 «About a right protection of computer programs») also it is possible to draw the Russian Federation a conclusion, that the program comes under to a right protection as object of the copyright, expressed in any form. And the objective code also is one of forms of expression of the computer program. Taking into account the aforesaid, it is represented correct to draw a conclusion, that an objective code of the computer program as one of forms of its expression, it is necessary to consider as object of the copyright.

Secondly, programs with OIT from the point of view of possibilities of their use, are represented by the most interesting phenomenon to the programming industries. For the first time about programs with OIT have started talking in 70th years at universities of the USA. Last years the question of use of such programs is already actively discussed at the state level. Such succession of events is represented quite natural. Possibility of application of programs with OIT, as at the state level so in many other areas of ability to live, has wide social and economic value. It is remarkable, that such interest from the state bodies of the majority of the states, svjazanna not only with possibility of reception of an economic gain from their use, but also with possibility of increase of level of safety of the state.


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A source: Smirnova Evgenie Jurevna. the OPEN LICENSE AS the FORM of the ORDER the EXCLUSIVE RIGHT TO the COMPUTER PROGRAM With the OPEN INITIAL TEXT. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow - 2015. 2015

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More on topic preconditions of occurrence and development of the computer programs with the open initial text:

  1. Chapter 1. Concept, the legal characteristic and preconditions of occurrence of the computer programs with the open initial text
  2. 3.1. Preconditions of development of the legislation in the field of the order the exclusive right to the computer program with the open initial The text
  3. Chapter 3. Development of the legislation on the order the exclusive right to the computer program with the open initial text in Russian Federations
  4. legal regulation and pravoprimenitelnaja practice of the USA concerning the computer program with the open initial text
  5. legal regulation and pravoprimenitelnaja practice of the European union concerning the computer program with the open initial The text
  6. the OPEN LICENSE AS the FORM of the ORDER the EXCLUSIVE RIGHT TO the COMPUTER PROGRAM With the OPEN INITIAL TEXT. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow - 2015, 2015
  7. Chapter 2. Legal regulation of the relations connected with the computer program with the open initial text
  8. free and open licences for computer programs
  9. Occurrence and development of open licences in intellectual property right
  10. Clinical preconditions to a multidisciplinary variant of development roboticheskoj programs
  11. § 1. Occurrence and development preconditions administrativnopravovogo dispute
  12. § 1. Preconditions of occurrence and the tendency of development of double taxation.
  13. Historical preconditions of occurrence and development of the legislation of Iran about divorce
  14. 1.1. Historical preconditions of occurrence tserko «" ogo pralg ~ and its development throughout first three centuries of Christianity.
  15. Historical preconditions of occurrence tserkoiiogo прав.* and its development throughout first three centuries of Christianity.
  16. patent protection of computer programs.
  17. a rightprotection of computer programs abroad. The comparative analysis.
  18. § 2.2. Creation, use and distribution of harmful computer programs