As a prominent IT-hub in CEE, Belarus gave life to quite a few players in the international IT arena, including EPAM, Wargaming.net, Viber, MAPS.ME, MSQRD, Prisma, and many, many others. More and more Western software and hardware companies are entering into long-term partnerships or other contractual relationships with Belarusian talent. In this context, the basic principles of Belarusian legal regulations that govern the protection and transfer of IP rights related to software are increasingly important.
Computer Programs as Objects of IP Rights
Software as an object of IP rights falls within the scope of the Copyright and Related Rights Law No. 262-Z dated May 17, 2011. This legal act defines a computer program as a structured-in-an-objective-form set of commands and data intended for use on a computer and other systems and devices for processing, transferring, and storing information, producing computations, receiving audiovisual images, and other results. Included in the definition are documents included in the computer program that describe in detail the functioning of the computer program, including interaction with the user and external components (i.e., an interface). Copyright protection applies to all kinds of computer programs (including operating systems), which can be expressed in any language and in any form, including source code and object code.
There is no need to register a computer program and obtain a patent or a certificate of any sort to ensure that the developed software enjoys protection under Belarusian law – copyright is applied to any computer program from the moment of its creation, like any art or literature object.
Belarusian copyright law guarantees the author or a copyright holder of a computer program a set of rights, such as the exclusive right to perform or permit installation of a computer program on a computer or other device, and to launch and operate it (the use of functional capabilities incorporated in the computer program), as well as other actions in accordance with Article 16 of the Law No. 262-Z. This law entitles the author or a copyright holder the exclusive right to decide the terms of use of a computer program by any other person. Per Belarusian legislation, the exclusive right to a computer program is valid during the life of the author and fifty years after his/her death.
Work For Hire and Computer Programs
There is an assumption in Belarusian law that the exclusive right to a computer program created by an employee is automatically assigned to the employer, unless otherwise provided by the contract between them. The author (employee) is entitled to ask for remuneration for this assignment, which is subject to the mutual consent of both the employee and the employer. From a practical point of view, it is very important to ensure that a particular computer program was created by an employee in the course of fulfillment of their employment duties or under the direct instruction of the employer. This is achieved by including necessary wording both into the employment contract and the duty regulations of each employee involved in software development. The way the developed program is reported to the superiors by the author is also important – thus it is always a good idea to have a special reporting form ready for such cases.
If the employer does not start using a program it received the exclusive rights to from the employee within five years from the date of the assignment or does not re-assign the exclusive right to another person, the exclusive rights are automatically transferred back to the author employee, unless otherwise provided by the contract between the employer and the author.
If the team involved in the development of software is working under civil contract rather than employed it is important to sign a license or IP rights assignment agreement with each team member to ensure a smooth transfer of the exclusive rights to the software.
And since the majority of US and English law-governed templates are inapplicable for this purpose, it is always a good choice to hire a local advisor to assist you in getting through all the peculiarities of our legal system.
By Klim Stashevsky, Deputy Director, Arzinger & Partners
This Article was originally published in Issue 4.5 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.
