Software Import Substitution with Open

Source Legal aspects

Anastasiia Gordeeva 07.07.2015

Regulation of Software Import Substitution

The new regulation aimed at restriction of purchasing foreign-owned or foreign-originated software and databases by the Russian state and municipal authorities as well as state-participated (50% or more) companies.

Legislation: Order of Ministry of Communications of the Russian Federation No. 96 of 01.04.2015

“On approval of the plan of imported software”;

Federal Law No.188-FZ of 29.06.2015 that prescribes creating the Russian Unified Register of the Computer Programs or Databases, criteria of Domestic Software and new rules for public procurement of software (come into force on 1 January 2016);

Draft Decree of the Government of Russian Federation “On restricting access of programming vehicles and informational products of computer engineering originating from foreign countries, for the purposes of procurement for state and municipal needs and additional requirements to procurement of services related to the use of programming vehicles and informational products of computer engineering”.

Criteria of Domestic Software exclusive right (intellectual property right) to a software or database

should belong to Russian entities and citizens within the entire period of such exclusive right validity and with respect to the territory of the world;

software and databases should be freely available on the market without any limitations;

the total amount of license fees paid by the software owner/holder under license agreements or other agreements must be less than 30% of the software owner/holder annual revenue, acquired from licensing of software/databases;

domestic software owner/holder shall be accredited as the organisation running the activities in the sphere of informational technologies

Domestic software product should be included into the “Russian Unified Register of the Computer

Programs or Databases”

Restrictions for public procurement

Government is supposed to introduce the restriction on purchasing foreign-originated software for the procurement of state and municipal needs:

State and municipal authorities should purchase programming product only in case such software products are the domestic software included in the Register or stipulate clear grounds why the said ban shall not apply to a particular public procurement purchase;

When purchasing the services the subjects of the law are requested to give priority to the domestic software and databases included in the Register and/or use the open source software.

Open Source Definitions

Free Redistributon:

The license shall not restrict any party from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources. The license shall not require a royalty or other fee for such sale.

Open Source Code:

The program must include source code, and must allow distribution in source code as well as compiled form. Deliberately obfuscated source code is not allowed. 

Allowance of modifications and derived works:

The license must allow modifications and derived works, and must allow them to be distributed under the same terms as the license of the original software.

http://opensource.org/osd

Position of IT-industry: Open Souse may comply with

criteria of Domestic Software

Legal issues of software import substitution with Open Source

Lack of legislative basis for state`s opportunity to use Open Source software;

Belonging of IP rights to derivative program;

Applicable law to Open Source Software;

Complications with development of software based on proprietary and Open Source code;

Risks of IP rights clearness, etc.

Proposed solutions Creating the specified legal regulation for usage, development

and purchasing of Open Source software;

Building the business structure based on Open Source licence requirement to distribute derived and modified works under the same terms as the license of original software;

Using the opportunities of dual licensing on proprietary and Open Source terms;

Concentrate on domestic Open Source software support primarily as the more effective way for software import substitution in the conditions of modern regulation.

Thank you for your attention!