30 January 2009

Innovative developments are unprofitable for scientists

Casuistry vs. CreatorsMichael is found, STRF.ru
The system of guaranteed payments to the authors of innovations in the country has not yet been created.

Experts believe this is one of the reasons that explains the obscenely small share of intangible assets in the Russian economy (0.3 percent with 30-40 percent in developed countries). Potential innovators are not financially interested in creating them.

The right is there – there are no obligationsIf we analyze the legal casuistry of the fourth part of the Civil Code of the Russian Federation, which establishes the right of scientists-developers to receive remuneration for alienating the rights to the results of their work to the employer, the conclusions are very disappointing.

The employee's right to royalties prescribed in two articles of the Civil Code of the Russian Federation (Article 1295, paragraph 2 and Article 1370, paragraph 4) does not really mean anything.

"The general provisions of the fourth part of the Civil Code of the Russian Federation systematize the scope of rights and claims in the field of intellectual property and prescribe the obligation of the assignee to pay remuneration to the author. But the legislator did not establish mandatory conditions for the registration of the relationship between the employer and the employee-author. In particular, the Code does not prescribe the essential terms of such an agreement, nor does it prescribe a mechanism for determining the value of remuneration. I think this is not accidental," said Samvel Karakhanyan, President of the Barshchevsky and Partners Moscow Bar Association.

Articles 1295 and 1370 of the Civil Code of the Russian Federation enshrine the right of authors to remuneration for the alienation of property rights to intellectual property created by them as part of their official activities. But "the developer's right to receive copyright remuneration does not mean the employer's obligation to provide it. Therefore, even if the author goes to court, he has practically no prospects of winning it. Payment of royalties is, in fact, a matter of the employer's goodwill," says Eduard Borisov, General Director of the Scientific and Innovative Center for Information Technology.

If the above-mentioned articles would not so much declare the rights of employees to remuneration for alienated rights, as they would oblige employers to pay it, then all issues with copyright payments would be removed. In the meantime, it seems that the legislators simply reinsured themselves.

What is the power? In the contractSince, as one of the experts noted above, the fourth part of the Civil Code of the Russian Federation does not stipulate a specific procedure, conditions and amount of copyright payments, these issues are de facto left to the parties concluding an agreement on the alienation of property rights to intellectual property, that is, to the employee and the employer.

Alexander Yalushkin, legal adviser of FBK-Pravo, in his comment on the topic referred to paragraph two of Article one of the Civil Code of the Russian Federation, which "enshrines one of the fundamental principles of civil law of the Russian Federation. It determines that individuals (citizens) and legal entities (enterprises and institutions) acquire and exercise civil rights by their will and in their interest, they are free to establish rights and obligations based on the contract, and to determine any of its conditions that do not contradict the law."

According to paragraph three of Article 1234 of the Civil Code of the Russian Federation, Alexander Yalushkin explained, "an agreement on the alienation of an exclusive right can be either gratuitous, that is, it does not provide for the payment of remuneration to the rightholder for the alienated exclusive right, or paid. In the latter case, it must necessarily specify the conditions stipulating the amount of remuneration or the procedure for determining it." By default, the contract is paid, unless otherwise stated in it, Mr. Yalushkin stressed.

Thus, if an employee has signed a contract stating that his property rights are transferred to the employer free of charge, he can forget about the author's remuneration. However, according to one of the experts in the field of civil turnover of intellectual property, the president of the FINAS Foundation Gennady Fokin, "one could agree with this statement if it were not about official works and technical, artistic and design solutions. The norms of Articles of the Civil Code of the Russian Federation 1295 and 1370 apply to official, i.e. created in the order of labor relations, works and objects of industrial property. Therefore, even if an employee was somehow forced to conclude an agreement on the gratuitous alienation of rights to official intellectual property, this can always be challenged in court." The right to royalties, Mr. Fokin believes, takes precedence over the terms of the contract, which can be defined as gratuitous. Thus, experts' opinions differ.

The developer may have much better chances to defend his property rights if a mixed (or separate civil law) contract between him and the employer is simply incorrectly drawn up. "If the contract does not mention remuneration at all, or even mentions it, but does not allow determining its amount or the procedure for determining it, such an agreement is "considered not concluded"," explains Samvel Karakhanyan. That is, a situation is possible when the other party to the contract – the employer – actually appropriates the rights to official works or developments on the basis of an "empty piece of paper". But do scientists, for example, know about this? In our country, this is a rhetorical question.

What we have, we don't keep, with the "gray" market cryingIn the Soviet Union, the developer was guaranteed to receive remuneration at least twice: when issuing an author's certificate and when implementing the development at the enterprise.

The amount of royalties was determined by a special resolution of the Council of Ministers of the USSR. However, some representatives of the scientific community considered these payments "ridiculous". In modern Russia, scientists, even those working in the public sector of science, do not have such guarantees.

Not seeing real and one hundred percent prospects of receiving remuneration for innovative developments, their authors prefer not to get into the legal jungle, not to defend their rights in court, but to receive blood dividends on the "gray" market of intellectual property turnover. In the past year, many experts and officials have talked about the existence of such a market publicly (see the interview STRF.ru Director of the Department of State Scientific, Technical and Innovation Policy of the Ministry of Education and Science Alexander Naumov and Head of the Russian Agency for Support of Small and Medium-sized Businesses "Development" Viktor Ermakov).

In particular, the so-called "bypass" patents contribute to the shadow turnover.

"Even if a patent is issued for an institute, it will not be very difficult for a developer to make a "workaround" patent for a third-party organization or for himself. When I worked at the Siberian Branch of the Russian Academy of Sciences and analyzed academic patents, I was struck by the fact that the Boreskov Institute of Catalysis accounted for about nine percent of the developments of the entire Academy of Sciences (about 260). Not a single Moscow or St. Petersburg institute was even in the top ten on this indicator," he said in an interview STRF.ru The head of the ITC RAS in Chernogolovka is Academician Vyacheslav Buznik. – At that time it seemed to me that innovation activity was not active enough in Moscow. Having worked at the center, I see that people's activity here is not at all lower than in Siberia, it's just that many developments are being implemented outside of institutions."

Eduard Borisov agrees with the academician: "It is not difficult for a scientist to register a "bypass" patent for himself. The rules adopted in our country have been preserved since Soviet times. At that time, the state ultimately had the property rights to the developments, so there was no need for a comprehensive description of the formulas of the patented objects. This liberalism has been preserved to this day."

All this results in the fact that the resource base of research and development is being reduced. In addition, venture and strategic investors in Russia are usually not interested in "bypass" patents, so new developments often simply "leak" abroad – together with their authors.

There are also quite simple schemes. One of them is the hidden transfer of technologies from specific scientists to industrial companies through contracts for "part-time" work, involving the alienation of all property rights to intellectual property to the customer enterprise. In this case, the developer's remuneration under the contract de facto includes "author's" money and remuneration for assistance in implementing his own innovation.

Will standards save you?The President of the FINAS Foundation, Gennady Fokin, believes that it is possible to create a transparent market for intangible assets if clear standards are developed in the field of intellectual property turnover, on which scientific organizations will rely.

Such standards may, in particular, regulate: the organization of industrial intellectual activity of employees; the creation of knowledge-intensive, high-tech products; the transfer of rights alienated from an employee to an employer; the management of intellectual property both within a scientific organization or enterprise and outside them. According to Mr. Fokin, the application of national or corporate standards in this area (that is, standards of individual organizations) will finally help to form a real market for the turnover of innovative products in Russia.

FINAS Foundation has already developed the first such standard – STO.9001-98 "Intellectual Property and Innovation. Associated Quality Management System" (Download the standard. STRF.ru leads it without applications. – ed.).

Both scientists, inventors or designers, and the management of organizations will benefit from the use of such standards by an enterprise or scientific institution, Gennady Fokin is convinced. For example, the standard may stipulate an obligation to pay royalties to the developer; and, say, to the director of the Institute of the public sector of science, it gives additional opportunities to confirm to the state not only the targeted use of budget funds (this will already be checked by the Accounting Chamber and the Federal Treasury), but also the effectiveness of their use in creating high-tech, high-tech products and unified technologies.

If the employer does not want to introduce such a standard, fearing precisely the obligation prescribed in it to pay royalties to an employee for alienating exclusive rights, then either trade unions interested in additional material incentives for employees or the state can force managers to do this. If it seeks not only in words to stimulate the development of an innovative economy.

Portal "Eternal youth" www.vechnayamolodost.ru30.01.2009

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