Some legal aspects of selling of software on the Internet in Ukraine
The software products made independently needs promotion at the market where the competition is very sharp. The most of programmers make contracts with big forms specialized in development and sale of software. However, this cooperation is not always possible. Therefore an author of a computer program has to search independently the ways of realization of his product. Lately, sale of software products via Internet has become popular.
The main question that interests the authors of software products is in what way the procedure of realization of computer programs via Internet is regulated. The principal normative legal acts that regulate this matter are the Civil Code, the Laws of Ukraine “About copyright and related rights” and “About distribution of copies of audiovisual products, phonograms, video records, computer programs, databases. The last mentioned law regulates that the compulsory condition of realization of copies of computer programs in Ukraine is availability of control marks. With that, a copy is considered to be a copy of a program that is placed on the material carrier. Accordingly, the requirement concerning the control marks does not cover the realization of program products via Internet.
The basic issue concerning the sale of program products in the Internet is contained in Article 1 of the Law “About copyright and related rights”. It is defined in it that the publishing of a product implies the release of a copy of a computer program into circulation according to consent of the author or other subject of copyright (or related right), including providing the access to it via using electronic information systems. The compulsory condition is that every person can get it regardless of his/her location and at any time at his/her option.
Thus, the commercial distribution of a computer program via Internet by the author or the copyright holder does not contradict to the laws of Ukraine. However, a programmer who created a program or a computer game is interested not only in publishing of his/her program products in the Internet, but also in getting profit from selling them.
A creator of program products chooses independently the way of commercial distribution of a computer program via Internet. Many programmers use services of the specialized websites which place new games or programs for compensation. As a rule, those resources are known to many IT firms and are popular among specialists. For promotion of products, some authors practice creation of own websites where there is paid access to a program. A copyright holder or an author may make their program as shareware, that is, to provide free access to it for a certain period of time, and get a compensation for it afterwards.
An important nuance at sale of program products is fixation of copyright. It is reasonable to solve that matter in an integrated fashion, to the extent of state registration. In any case, the © sign should be used for a created game or other program, with indication of the author (copyright holder) and the year when the product was first published.
As a rule, the commercial distribution of computer programs via Internet in Ukraine is based on application of norms of Article 634 “Contract of adhesion” of the Civil Code. Therefore, when selling the program products, a copyright holder makes a contract or a user agreement with a user, in which the terms and conditions of using the program are fixed. It (agreement) is provided as an electronic document, and its concluding happens via buyer’s (user’s) giving consent to agree with terms and conditions of the contract or the user agreement.
One should remember that sale of program products via Internet in Ukraine implies arising of tax liability, and registration as a business entity is required in case of systematic sale.