Software Protectability Criteria

 Software is a special non-classical intellectual deliverable that although is included in the general list set forth in Art. 1225 of the Civil Code of the Russian Federation, has a number of differences from other more familiar intellectual deliverables. However, there is no special regulation for software, so users and judicial authorities are forced to rely on universal rules. Speaking of criteria of protectability of intellectual property items, the classical legal doctrine refers to those criteria the creative component, originality and novelty of a created work of science or art. Software has no such attributes in the conventional sense, the utilitarian component prevails over the creative one, originality is dubious due to the limited applicability of solutions, content dominates over form, novelty can be referred to within the framework of source code changes. The purpose of this paper is identification of protectability criteria characteristic of software. The conclusion made based on the results of studying and analysis of works of scientists, laws and law enforcement practice is that although the legislator has established the analogy between the legal regime of software and that of literary works, full explication of protectability criteria applicable to the latter is not valid with regards to software. In particular, this refers to the list of authors, the creative component and novelty. Additional challenges are posed by software that has intellectual abilities to self-learn, and the conflicts related to authors and legal matters arising in this respect. The publication relies on the analysis of special aspects of software to define protectability criteria characteristic of software, bring forward proposals for division of criteria into obligatory and optional ones as well as optimization of legal regulation of such type of intellectual deliverables.