Digital rights in civil legislation: reality and prospects for development of digital technologies in the context of intellectual property results protection

Размещено на http://www.allbest.ru/

Digital rights in civil legislation: reality and prospects for development of digital technologies in the context of intellectual property results protection

G.N. Chernichkina

Abstract

digital environment content

The author reviews draft legislation which proposes to introduce new concepts into the Russian legislation, such as: digital right, blockchain, smart-contract and some other. Analyzing the materials of conferences and periodicals, the author concludes that currently the use of digital technologies in protection of intellectual property is objectively in demand and seems very promising for maintaining registers.

Keywords: digital law; blockchain; smart contracts; digital economy; intellectual property; registries.

Today, science and technology are developing towards the creation of a new digital environment enabling people to carry out increasingly more types of actual activities. The digital environment becomes crucial in accounting for material values, and helps to record the associated rights, establish the identity of the right holder of such goods, record the expression of the subjects' will in transactions and the fulfillment of this will, including all required calculations.

The development of digital technology started with the commencement of settlements of contracts using digital means of payment, without the banking system. To date, the development trends include so-called blockchains -- distributed registers (databases, distributed way of storage) and smart contracts (digitized content of contracts in such databases).

The new blockchain technology is a database where any element of information is expressed using a unique machine code, a calculated value associated with other similar values -- thus, preventing any subsequent modification or removal as all digital elements are interconnected. This allows the use of this technology to maintain the registry and ensure reliability of the data in the registry using a unique code.

Currently, the volume of transactions and calculations using digital technologies is increasingly growing, and legislation cannot longer ignore the existing relations. The need for such legal regulation is also in the interest of individuals -- participants of such relations through the digital environment -- and of public interest, both for taxation and security purposes.

The actual commencement of legislative regulation of the use of digital technologies in business can be traced back to the draft law «On labeling products with control (identification) tags in the Russian Federation» developed in December 2016 by the Ministry of Finance of the Russian Federation, which was not submitted to the State Duma of the Russian Federation1.

In December 2017, the Government Commission approved the «Roadmap for Normative Regulation of the program «Digital Economy of the Russian Federation» aimed to improve the life quality and conditions for business Draft of Federal bill «On labelling goods with control (identity) marks in the Russian Federation» // URL: http://regulation.gov.ru/ as of 08.12.2016. Schedule of measures for «Normative regulation»» of the program «Digital Economy of the Russian Federation”. Approved by the Protocol of the Government Commission for the use of information technologies to improve the life quality and conditions for business activities, of 18/12/2017 № 2 // URL: http://static.government.ru as of 09.01.2018..

The business community evaluated the «large- scale project for control over commodity markets -- system of continuous labeling of goods with identification marks» -- and concluded that this would «allow monitoring of circulation of all groups of goods on the territory of the Russian Federation». For the state, the advantages of the new system are evident as well -- it can be integrated with the “unified cash voucher” of the automated control systems used by the Federal Tax Service and with the customs databases». Only the taxation authorities «of South Korea -- and partly Singapore -- have similar capabilities enabling analysis of commodity transactions in real time» Butrin D., Skorobogat'ko D. Igra tol'ko belymi. Tovarnyy rynok Rossii k 2024 godu mozhet stat' polnost'yu proz- rachnym [Playing white only. By 2024, the commodity market in Russia can become fully transparent] // The Kommersant. 2017. Nov., 15, № 212. P. 1. URL: https://www.kommersant.ru/doc/3467482 from 11/15/2017..

In March 2018, as part of planned regulative measures with regards to the digital economy of the Russian Federation, the Council of the State Duma of the Federal Assembly of the Russian introduced and reviewed Items 64, 65 of the Meetings of proceedings, Council of the Federal Assembly of the Russian Federation of March 20, 2018. № 105 // URL: http://sozd.parlament.gov.ru/ as of 21.03.2018. draft bills «On digital financial assets» Draft of the Federal Law № 419059-7 «On Digital Financial Assets» // URL: http://sozd.parlament.gov.ru/ as of 20.03.2018. and «On alternative ways of attracting investment (crowdfunding)» Draft of the Federal Law № 419090-7 «On alternative ways of investment attraction (crowdfunding)»// URL: http://sozd. parlament.gov.ru/ as of 20.03.2018., aimed at regulating relations in finance and investment using digital technologies that were included in the State Duma program for legislative activities.

The draft bills introduce into legislation and legally define the concepts of cryptocurrency and token already existing in real relations -- these are now regarded as digital financial assets. A new type of contract concluded in electronic form -- smart contract -- is introduced. It implies associated obligations using digital financial technologies. According to the draft bill, the distributed register of digital transactions is considered as a digital financial technology. Also, some other commonly used concepts are introduced -- such as mining and digital wallet.

Legislation defines a new type of the already existing activity -- crowdfunding, attracting investments using digital technologies. It is proposed to recognize as crowdfunding the retail financing services which is defined as provision of access to investors and persons attracting investments to the Internet information and telecommunications network (information platform) to conclude with its use the contracts for attracting investment.

The proposed changes affecting economic activity can only become possible with the simultaneous coordination of all introduced definitions with the provisions of civil legislation. Therefore, the State Duma also introduced a deputy bill on securing digital rights in civil legislation Draft of the Federal law № 424632-7 «On introducing amendments to parts one, two and four of the Civil Code of the Russian Federation» // URL: http://sozd.parlament.gov.ru/ as of 26.03.2018.. The draft amendments to the Civil Code should be considered as the basis for the forthcoming global legislative changes that will affect not only the financial sphere (as proposed in the abovementioned draft bills) but will also form be the basis for creating practically all branches of management with the use of digital technologies.

Thus, the draft Civil Code proposes amendments to Art. 128 of the Civil Code of the Russian Federation supplementing it with a new object of civil rights -- the digital rights. The definition of them is to be provided in the additional article 141.1 of the Civil Code of the Russian Federation. It is proposed to consider the form of the transaction made by the party to the transaction and its will expressed in such

a transaction using electronic and other technical means, taking into account the changes in Art. 160 Civil Code of the Russian Federation, equal to the written form. Special rules are proposed with regards to the fulfillment of the obligation under such transaction, and the additional art. 783.1 introduced to the Civil Code of the Russian Federation defines an independent type of a civil legal contract -- agreement on information provision services.

Thus, according to the law Novoe v rossijskom zakonodatelstve. 22.01.2018--13.04.2018 // LRS «ConsultantPlus».:

in cases provided for by law, rights to objects of civil rights (excluding intangible goods) can be certified by a set of electronic data (digital code or designation) available in an information system that complies with characteristics of a decentralized information system established under legislation; the information technology and technical means of this information system must ensure that the person who has the unique access to this digital code or designation can at any time access the description of the relevant object of civil rights (the indicated digital code or designation are recognized by digital law);

the provision is set on persons who may be holders of digital rights, and the procedure for respective rights transfer, and alienation of digital rights;

the concept of `digital money' is defined (these can include a set of electronic data (digital code or designation) that does not certify the right to any civil rights object, created in an information system that conforms to the statutory criteria of a decentralized information system where users of this system can make payments);

it is envisaged that digital money is not obligatory in all types of payments, for crediting to accounts, deposits and for transfers on the territory of Russia; however, in cases and according to conditions stated by law, it can be used by physical and legal entities as a means of payment;

it is established that if certain conditions are met, the written form of transaction shall be considered also as observed in cases when the person expresses the will using electronic or other similar technical means (e.g., by sending a signal like filling out an online form) unless otherwise envisaged by federal law or by agreement between the parties;

-- specifics of the contract on information service

provision is envisaged.

By all means, provisions presented in the draft laws are subject to discussion and approval and are primarily aimed at the settlement of financial relations. However, digital technologies, besides the initial niche of their application (financial and commercial) are also in demand in other areas, e.g. protection of intellectual activity results. Thus, Rospatent actively considers the use of digital technologies for keeping the register of intellectual property results.

The possibility of using blockchain technologies and smart contracts for accounting of intellectual property were discussed on April 16-17, 2018 at the 1st International Conference `Digital Transformation: Intellectual Property and Block Technology' URL: http://ip-blockchain.ru/. of the World Intellectual Property Organization, BRICS patent authorities and the Federal Intellectual Property Service (Rospatent).

According to Rospatent website6 Deputy Director of the Center for Patent Expertise of the Patent Office of the People's Republic of China (SIPO) Zhu Xiaolin, following the results of the conference, «compared blockchain technology with a giant submarine that sleeps in the depths of the world ocean». Still, we do not know whether this vessel will eventually resurface. If yes -- the next question would be who is going to stay onboard. Therefore, China has already launched the first experiments on the use of blockchain technology in the field of intellectual property.

The use of blockchain system by Chinese Patent Office allows to record the priority of genuine products using a time stamp, and clearly identify the author of the entry made in the system. As the record does not allow backdated modification or forgery in hindsight, blockchain systems helps to control the purity of transactions and effectively manage transactions and objects of transaction.

At the moment, China has two Internet sites for intellectual property based on blockchain technology. `Innovative Treasury' provides services for preserving evidence: a record in it can prove authorship or priority; the second site is used for turnover of patents and is attractive on terms of the opportunity to attract many participants, high transparency, reduced cost of checking the information and reducing the likelihood of challenging transactions” Nacionalnaya strategiya obrazovanie i finansovye instrumenty slagaemye kitajskogo patentnogo chuda [National strategy, education and financial instruments - key components of the Chinese patent miracle] // Rospatent website as of 17.04.2018. URL: http://www.rupto.ru/ru/news/ipchina.

The level of development of China in protection o intellectual property is demonstrated by the fact that in 2017 the number of applications in China exceeded 1 382 000 -- a 14 % growth during the recent year alone. The profit from hi-tech export exceeded 4 billion dollars, and the IC domestic market turnover exceeded 72 billion yuani)..

Russia is not completely behind in this sense. In 2017, Rospatent recorded in the register under No. 2639015 the invention “The method for controlling products authenticity and quality during production and sales” in the class of IPC G 06 K 5 / 0211: such digital technologies are already in demand where account and control over something are required.

As seen from the relations with the use of technologies, digital technologies are not limited to only cryptocurrencies only which in fact triggered the whole digital development. Thus, in the USA 545 applications have been submitted for the use of blockchain technologies, and 68 patents already issued. 191 applications for trademark have been filed with the used of the word `blockchain'. Nevertheless, the active applicants in the blockchain area still are loan, finance and payment companies: Bank of America, Mastercard and IBM Byulleten izobretenij. 2017. № 35. Patent Hatchery approved about 10 % patent applications using blockchain. Interview by Nadezhda Reingard, President of Patent // URL: https://www.pravda.ru/news/economics/crypto/17-04-2018/1381117-crypto-0/..

To date, however, the fields where digital technologies are applied are constantly expanding. Specialists point out that blockchain technologies and smart contracts can be applied in various fields such as:

logistics;

audit;

insurance;

loans;

healthcare;

accounting;

identification of the person;

registration of rights;

elections and other all kinds of voting Volkonskaya E. Smart kontrakt prostymi slovami: chto ehto i komu nuzhno[ (Smart contracts in easy words -- what is this and who needs them?] // URL: http://bestinvestpro.com/smart-kontrakt-prostymi-slovami-chto-eto-i-komu-nuzhno/ (11.02.2018). and other areas of their application.

We suppose that solutions based on blockchain technology can be applicable in those areas which require protection of solutions for organization of production and storage, accounting of products and control over their quality with keeping all kinds of registries. Currently, active patenting of such solutions are observed in these areas precisely.

Thus, the use of distributed registries enables the users to ensure access to the stored data information (taking into account its open placement), to ensure the reliability of information (which today is highly relevant in connection with the need for registries to be publicly reliability), eliminate any intermediaries in transactions, ensure quick and efficient search for information and execution of transactions.

Obviously, the need to master digital capabilities is a reality of our time and the inevitable future. Simultaneously, the civil law science, we believe, is facing a new stage in the doctrinal development -- to define the new type of the civil rights object (digital rights), to define the type of civil law and its nature with regards to this object, and to determine of its place in the civil rights system.

Размещено на Allbest.ru