Legal Protection of Computer Programs Created Using Software Platforms

Shevelev Ivan Vitalevich ORCID: 0009-0004-8890-7228 Postgraduate student; Faculty of Law; St. Petersburg State University 199106, Russia, St. Petersburg, Vasileostrovsky district, line 22-ya.O., 7 mail.shevelev@gmail.com

Introduction

Russian intellectual property legislation covers key aspects of software protection, recognizing computer programs as objects of copyright. However, there is no clear regulation of the qualification of these objects created using software platforms. The question of who owns the rights to software products created on the platform database remains open, which creates uncertainty for both developers and companies using such platforms in their activities. This, in turn, creates the risk of legal uncertainty turning into conflicts between developers and copyright holders.

The uncertainty of the legal status of software products created using software platforms affects several key aspects. Firstly, these are the interests of the authors and developers. Programmers using platform solutions may find themselves in a situation where the results of their work are partially or completely subject to licensing restrictions imposed by the copyright holders of the platform software. This restricts their rights to the created programs, including the rights to modify and commercialize them. Secondly, the interests of the copyright holders of the platform software also play an important role. They are interested in protecting their services as commercially significant assets, controlling their use for monetization, and ensuring the security of their technologies. In addition, foreign doctrine has long emphasized the need to clearly define the boundaries of responsibility between developers and platform owners ^[1].

To study the described issue, it is advisable to identify the general patterns of development of such a phenomenon as platform development (in other words, to apply a common dialectical method), as well as to apply such general scientific research methods as formal logic, comparison, analogy, analysis and synthesis, and private scientific:comparative law, formal law.

The problems raised in the article in both foreign and Russian doctrines are characterized by a low degree of study. At the same time, related issues related to the difficulties of establishing the legal status of computer programs have been repeatedly raised by such leading experts in the field of intellectual property law as I.A. Blizn, V.S. Vitko, A.S. Vorozhevich, E.S. Grin, V.O. Kalyatin, A.I. Saveliev, B.E. Semenyuta, L.V. Cytovich, and they continue to become the subjects of research by many other prominent legal theorists.

The study of the qualification of software products created using software platforms seems to be an important step towards eliminating gaps in legislation. It will allow us to propose ways to protect the rights of both developers and copyright holders of software platforms, as well as develop recommendations for amending legislation to adapt it to the modern requirements of the IT industry.

The concept of software platforms

Alt-Soft company understands the term "software platform" as "a set of software solutions and technologies that allow creating information systems by assembling and configuring ready-made modules" (KAISA Software Platform // URL: https://altsoft.spb.ru/kaisa-program (date of request: 03/24/2025)).

For example, it is advisable to consider a number of popular software platforms – products that allow developing application solutions within closed ecosystems. These platforms create certain conditions for the use and distribution of applications based on them, which determines the degree of freedom to develop and license ready-made solutions. Here is an analysis of several such platforms.:

SAP is one of the most widespread enterprise process management (ERP) platforms, with the ability to create and integrate applications within a single system. The main programming language in this platform is ABAP (Advanced Business Application Programming), a proprietary language developed by SAP Corporation for the specific needs of its ecosystem.

The Microsoft Office software package includes the Visual Basic for Applications (VBA) programming language, designed to automate tasks and extend the functionality of Office applications. VBA allows users to develop macros and add-ons that function exclusively in the Microsoft Office environment. The limited scope of the language is due to its integration with the internal structures of the package.

The Adobe Photoshop software product offers users the ability to automate tasks and create scripts using proprietary scripting tools such as Photoshop Scripting, as well as standard JavaScript, AppleScript, and VBScript languages. These tools are used exclusively to work within the Adobe environment and are not intended for use outside of it.

Oracle Database uses a proprietary SQL extension called PL/SQL (Procedural Language/Structured Query Language), which allows users to develop complex procedures and functions for the internal workings of Oracle databases. PL/SQL was developed by Oracle Corporation and is a language designed to be used exclusively within this platform.

Thus, the described platforms share a number of features: each of them offers users proprietary language tools integrated exclusively with their ecosystems and aimed at creating application solutions within an environment limited by licenses and terms of use.

The most popular example of such an application creation platform in Russia is 1C:Enterprise (Architecture of the 1C platform:Enterprise (version 8.3.27) // URL: https://v8.1c.ru/platforma/o-platforme-v-tselom / (date of access: 03/24/2025)).

In accordance with clause 4 of the License Agreement governing the rules for using the 1C Software Product.:Enterprise 8", the Licensee undertakes, without the special written permission of the Copyright Holder, not to "make any changes to the code of the Software Product, the contents of databases and other data sets in which the system stores information, with the exception of those changes that are made by standard means included in the Software Product and described in the accompanying documentation." This provision obliges the licensee to obtain the written permission of the copyright holder to make any changes beyond the standard means. Thus, the copyright holder restricts the licensee's actions, leaving the process of changing and adapting the product under his control.

However, there are opposite examples where the approach to licensing restrictions is: a) stricter, limiting users to their own development rights, or b) less strict, giving users more freedom to adapt and modify the software.

Software platforms are computer programs that integrate technologies that allow you to create other computer programs. The use of proprietary programming languages and strict licensing agreements can both limit the activities of developers and their ability to commercialize their solutions, as well as provide developer users with more freedom to create new software products and develop innovations. This highlights the need for further study of the license terms of software platforms and their impact on software development in today's market.

Analysis of the license terms of software platforms

For the purposes of this study, an analysis of the license terms of software platforms from the Russian Software Compatibility Catalog of the Russian Software RPP "Domestic Software" was carried out in the "Software Platforms" section in order to determine the prevalence of cases of restriction of developers' rights to the results they create using these platforms (Substitution of foreign software: Russian Software Compatibility Catalog // URL: https://catalog.arppsoft.ru/replacement/section_6054056 (date of access: 03/24/2025)).

This problem is of particular relevance in the context of import substitution, since this catalog was developed on the initiative of the Russian Software Company for the purpose of informing the public and potential consumers about Russian software products and, most importantly, their compatibility. The list is a kind of recommended solution for replacing foreign software.

Table 1 shows the key results of the study, reflecting the classification of software platforms according to various criteria.:

In the course of the analysis of the license terms of software platforms, the results reflecting the current state of contractual regulation in this area were obtained.

In connection with the above, it is advisable to consider in more detail examples of license agreements in which the exclusive right of the user to the results created using the software platform is limited.

Thus, the license agreement with the end user of the TURBO X management information system development platform states the following: "The platform contains tools and embedded programming languages for refining Applications purchased by the Licensee, as well as for creating new Applications. The Licensee may not use embedded programming languages to create new Applications for further commercialization and/or transfer to third parties without the written permission of the Licensor or the Copyright Holder" (End User License Agreement // URL: https://ncloud.cbgr.ru/index.php/s/fWLEt74g7gQqirb (date of access: 03/24/2025)). At the same time, the copyright holder's website notes that the platform is designed to create business applications (the new fast-moving TURBO X engine // URL: https://turbosolution.ru/products/x (date of access: 03/24/2025)). Such conditions protect the interests of the copyright holder, but at the same time create barriers for licensees seeking to innovate and commercialize their developments.

The AlphaLogic end-user Agreement prohibits "making changes to the Software Product, translating, redesigning, decompiling or disassembling the Software Product, creating other products based on it...". AlphaLogic is a software package for creating an integrated monitoring environment that allows you to manage buildings and geographically distributed infrastructure facilities (Alphalogic platform // URL: https://www.alphaopen.com/platform / (date of access: 03/24/2025)).

Thus, an analysis of the license terms of software platforms from the Russian Software Compatibility Catalog shows that existing restrictions on the rights of developers to the results of their activities are a common practice.

Protecting the exclusive rights of developer users

The process of creating a computer program using the platform involves familiarizing the developer with its user documentation and often learning embedded programming languages. AI Saveliev notes that "User documentation is aimed at explaining the capabilities of a computer program and describing how to work with it" ^[2]. Agreeing with this definition, it should be noted that based on the content of the user documentation, it is possible to identify a cause-and-effect relationship between the user's actions and the final result after the fact: this may affect the solution of the problem of qualifying a derivative computer program in a particular case. It is important to clarify the question of whether a program created on the basis of a platform is a derivative of it or an independent solution, which is necessary to further answer the question of the legal protection of the exclusive rights of authors.

Firstly, a program developed using a platform may technically depend on it, for example, it may require a specific operating system or execution environment for correct operation. However, this dependence does not lead to the inclusion of the platform itself in the computer program. In the legislation, technical dependence on the execution environment or development tools is not considered as an integral part of the protected object. Nevertheless, researchers note that certain intra-platform objects are technically "tied to the platforms within which they are developed and deployed" ^[3]. From the point of view of restricting the rights of developers, the described binding is fraught with consequences in the form of recognition of the newly created result to the extent that the new source code is "inseparable" from the platform and, despite the indication of the form of expression of the computer program, does not have sufficient features to recognize the object as protected.

Secondly, a computer program covers only those elements that are directly included in its code base. It is not for nothing that the Russian doctrine notes that in the context of software platforms, the fact that "The architecture of software platforms is characterized by modularity" is of legal importance ^[4]. On the one hand, modularity creates a fertile platform for thinking about the limits of the form of a computer program. On the other hand, the considered feature of the software complicates legal protection for developers, for which there are already examples in Russian judicial practice (see Resolution No. 25-P of the Constitutional Court of the Russian Federation dated 06/16/2022 "In the case of checking the constitutionality of paragraph 3 of Article 1260 of the Civil Code of the Russian Federation in connection with the complaint of citizen A.E. Mamichev"). If the platform as an operating system or special software is not part of the program code, but only serves as its functional support, then it cannot be considered part of the program. In this case, the platform acts as an independent tool for execution, but not as an element of the program. This provision is consistent with established American and British judicial practice, where computer programs have relatively weak legal protection due to incomplete coverage of computer program elements ^[5].

Thirdly, according to sub-clause 9, clause 2, Article 1270 of the Civil Code of the Russian Federation (CC RF), the adaptation of a program, including its modification in order to work on certain technical means or within the framework of a specific user program, is not a reworking in the legal sense. This applies, for example, to cases of cross-platform development or adaptation of programs to work in cloud environments such as Kubernetes. In such cases, the platform can be used to ensure interoperability, but it does not become part of the computer program itself.

Thus, the platform itself on which a computer program is created or operates is not an integral part of it, unless it is included in the program's code base. The platform serves as a means for executing the program, but is not part of the copyrighted object.

According to Article 1229 of the Civil Code of the Russian Federation, copyrights to works, including programs for electronic computers, arise from the moment of their creation. This happens regardless of the fact that the rights are registered or the conditions prescribed in the license agreements. Thus, the developer retains the right to protect his software, provided that it meets the criteria for protection established in the Civil Code of the Russian Federation.

License agreements may restrict the rights to use the software, but they cannot interfere with the process of creating new programs. While the license terms may relate to the use or distribution of the program, they cannot revoke the copyrights of newly created original programs.

It should be noted that the developer is able to create computer programs not only using the tools provided by the platform, but also using traditional methods such as manually writing code in notepad. This highlights the independence of the software creation process from the limitations imposed by platforms. Ultimately, the exclusive right to the created software should remain with the developer.

The user's right to use a program for electronic computing machines (computers) in accordance with its functional purpose is fixed in the Civil Code of the Russian Federation (subparagraph 1 of paragraph 1 of Article 1280). This right implies the user's ability to interact with the program, which allows them to benefit from and implement the functionality provided by the developer.

In addition, paragraph 4 of Article 1280 of the Civil Code of the Russian Federation clarifies that the right to use the program includes the possibility of its operation in accordance with the usual use of the program – its purpose and functional characteristics specified in the documentation or product description. This provision confirms that the user has the right not only to initiate the program, but also to apply it to achieve the specific results it is aimed at. In addition, L.A. Novoselova notes that the norm in question "specifically repeats the wording of the three-step test, which in this case acts as an additional criterion for how much the actions of a person lawfully owning a copy of a computer program or database are loyal to the interests of the copyright holder" ^[6]. Sharing the described approach, it should be noted that, in the author's opinion, the practical application of the three-step test in foreign judicial practice has had a positive effect as an additional tool to combat abuse in the field of intellectual property law.

Thus, the user's rights arising from the current legislation serve to protect his interests during the operation of the software. The norms of Russian legislation create a legal framework that allows the user to use the program as part of its purpose without fear of copyright infringement by the copyright holder. The restrictions imposed by the license agreements cannot undermine this basic user right, since it takes precedence over contractual regulation, in particular in the context of the operation of the software.

In this regard, the condition of the license agreement that restricts the user's right to create a protected result of intellectual activity should be considered null and void. It cannot serve as a basis for any legal consequences, since the right to create a protected object is outside the scope of the will of the parties and is protected by applicable law, regardless of the conditions set out in the license agreement.

Creating a computer program based on a software platform does not interfere with the legal protection of the final result, unlike when components from the platform software development kit (SDK) are included in the final solution ^[7].

In this case, the independence of configuration rights follows from judicial practice. Thus, the inclusion of an object in the database without the consent of the copyright holder (i.e., violation of other people's rights by the database manufacturer) does not deprive the database creator of the rights to it. As follows from the logic of the Decision of the Constitutional Court of the Russian Federation dated 06/16/2022 No. 25-P "In the case of checking the constitutionality of paragraph 3 of Article 1260 of the Civil Code of the Russian Federation in connection with the complaint of citizen A.E. Mamichev," since in the system of current legal regulation it allows the court to refuse to protect the copyright of the creator of a computer program in a dispute with a person who uses the specified computer program in the absence of his consent, only on the grounds that the named program is a composite work and its author has not fulfilled the condition of respecting the rights of the authors (copyright holders) of the objects (computer programs) used to create it, especially in cases where the defendant also does not have the necessary rights to the use of such objects (computer programs)" (Resolution of the Plenum of the Supreme Court of the Russian Federation dated 04/23/2019 No. 10 "On the application of Part Four of the Civil Code of the Russian Federation"). It should be noted that the provisions of the mentioned decision raise the question of whether this above gives grounds for classifying programs as composite works ^[8]. Although the doctrine has not yet developed a uniform approach to the qualification of a computer program as a composite work, it is obvious that the resolution of this issue will have significant legal implications for law enforcement practice.

However, the author-developer did not respect the rights of the authors (copyright holders) of the objects (computer programs) used to create it, in particular, their consent to such use of these objects was not obtained. In this regard, in order to respect the rights of the latter and further legitimate use of the created program, the author-developer needs to resolve potential controversial issues of using third-party components.

Ultimately, the functional limitations on the part of the copyright holder of the platform actually amount to the impossibility of modifying it, as well as including components in the newly created computer program, the exclusive rights to which belong to third parties. The latter also points to potential limitations in intellectual property rights related to the refinement of computer programs, which are recognized by the modern Russian legal order and for the purposes of further use of the platform program.

In addition, an array of law enforcement practice shows that judicial authorities and other competent authorities face difficulties in defining the boundaries between acceptable use of software and the creation of a new protected result ^[9]. This creates legal uncertainty and makes it difficult to comply with the license terms. As a result, prohibitions on the creation of RID are not only ineffective, but can also lead to legal conflicts, since developers can continue to create original products despite licensing restrictions. The terms of the license agreements that restrict the right of users to create RID cannot be effectively implemented and contradict the basic principles of freedom of creativity and innovative development in the field of information technology. In this context, it is advisable to draw an analogy with paragraph 4 of Article 1233 of the Civil Code of the Russian Federation – for example, A.S. Vorozhevich notes that, according to this provision, "the Civil Code of the Russian Federation directly indicated the invalidity of certain terms of license agreements to which antitrust mechanisms can be applied in the foreign legal order" ^[10].

Thus, license agreements that restrict the use of a software platform cannot prevent the creation of exclusive rights to create new applications or configurations that meet the criteria for the protection of computer programs. The condition stipulated in the license agreement for using the program for its functional purpose, which consists in performing actions aimed at creating software, can facilitate the creation by developers of independent protectable computer programs without violating the rights of the platform owner to it.

Conclusion

As a result of the conducted research, it was found that the existing legal uncertainty regarding the status of software products created using software platforms is a significant problem for both developers and copyright holders. Licensing restrictions imposed on platforms can significantly limit the rights of developers, including the creation and commercial exploitation of developed programs.

The process of creating a computer program using a platform does not include the platform itself in the protected copyright object, unless it is part of its code base. The platform only serves as a means to execute the program, not being an integral part of it.

License agreements that restrict the use of the program cannot prevent the creation of exclusive rights to create new applications or configurations that meet the criteria for the protection of computer programs. In other words, the user's rights to use the program, which are enshrined in civil law, cannot be limited by the license terms.

The right to create protected facilities is outside the scope of the will of the parties and is protected by law regardless of the terms of the license agreement. Restrictions that restrict the creation of new intellectual objects are legally void.

At the same time, the interests of the rights holders of the platforms require protection from unauthorized use of their technologies. Ensuring subjective rights largely depends on the principle of freedom to exercise them and the removal of unjustified obstacles in civil circulation. Thus, the use of software components provided by the copyright holder of the platform to users to create the results of intellectual activity (their processing) may be recognized as a violation of the exclusive rights to them.

The creation of a computer program based on the platform does not interfere with its copyright protection, if it does not include components that are subject to the rights of third parties. It is important that the developer respects the rights of other copyright holders when using components of third-party objects.

Prohibitions on the creation of new intellectual property results through the use of software platforms for their functional purpose, established by the right holders of the platforms, face difficulties in implementation, which leads to legal uncertainty between the parties. Developers can continue to create original solutions despite the restrictions, which makes such prohibitions ineffective.

To eliminate existing gaps in legislation, it is necessary to develop effective mechanisms to protect the rights of both software product creators and owners of platform solutions. An urgent task is to amend existing regulations in order to adapt legislation to the rapidly evolving requirements of information technology and ensure legal certainty in the field of intellectual property protection.