Application of Smart-Contracts When Using the Exclusive Rights to Results of Intellectual Activity

Abstract

In the article is considered problems of registration of contractual legal relationship on use of the result of intellectual activity using the smart-contract. The Russian, foreign and international standards of the right are investigated. The conclusion about the lack of a uniform and consistent system of legal regulation specified legal relationship is drawn. It is specified the reasons for such a situation. Also, the bad points connected with the possibility of application of the smart-contract when using results of intellectual activity come to light positive. Possible mechanisms of legal regulation are investigated. A conclusion about the need for the use of a possibility of positive regulation of the developing legal relationship is proved. The detailed analysis of the existing Russian legislation which elements it is possible to use by analogy at regulation of the relations with the use of the smart-contract for results of intellectual activity is carried out. The attention to the last projects approved by the State Duma of the Russian Federation is paid. Detailed analysis of innovations is carried out; it is specified positive and negative the moments, offers on improvement of rules of law are made. The analysis of international legislation supports drawn conclusions. The research of the doctrine demonstrates an ambiguous approach to the definition of the legal nature of the smart-contract. The analysis made it possible to systematize the points of view of Russian and foreign scientists, to highlight the technological and legal approaches to determining the nature of a smart-contract, within the latter to determine the broad and narrow approaches. It carried out the analysis allowed to formulate specifics of the smart-contract, to point out its key features and also to draw a conclusion on the need of fixing of the third (along with written and oral) transaction forms – program. Proceeding from the key feature of the smart-contract consisting in a separation of the will be directed to the performance of the contract from the actual execution the position connected with the expression of will in out of is proved and also characteristic is given to features of the offer and acceptance for the conclusion of the smart-contract. Materials - The legal basis for carrying out the research made the Civil Code of the Russian Federation defines the general requirements to the conclusion, change and termination of the contract and also to form and content; The Federal law No. 34-FL adopted by the State Duma of the Russian Federation on March 12, 2019 “About modification of parts the first, second and article 1124 parts of the third of the Civil code of the Russian Federation” establishing a new concept the “digital” right and features of transactions in electronic form; The project of a Federal Law No. 419059-7 “About digital financial assets” (the edition accepted by the State Duma of Federal Assembly of the Russian Federation in the I reading on May 22, 2018), which for the first time in the Russian legislation formulates a definition of the smart contract; Federal Law draft No. 419090-7 “About alternative ways attraction of investments (crowdfunding)”, pointing out features of smart contracts at crowdfunding. The analysis of foreign sources allowing to study the positive and negative experience of legal regulation of these or those elements of legal reality is of great importance for carrying out research. It is, in particular, Arizona Amendment Act (2017), Uniform Electronic Transaction Act (2018), Contracts in civil law of foreign countries (2018), Decree of the President of the Republic of Belarus No. 8 (2017) and others. The basis for a definition of the legal nature of smart contracts and the possibility of its application in the international commercial turnover the Principles of the global commercial treaties UNIDRUA (2010), the Principles of the European contract law (the added and revised version of 1998), et al. were acting. The essential doctrinal basis of the conducted research concerning the use of technical means when using an author’s right were the works of Kuzevanova (2018), Grin (2017), Svechnikova (2009). In the analysis of the legal nature of smart-contracts the works of Nikiforova and Smirnova (2017) are investigated; Dyadkin et al. (2018), Novoselova (2017), Bagaev (2018), Saveliev (2016), Amuial et al. (2016), that allowed to allocate various approaches to understanding smart-contracts and to draw conclusions about their legal nature. The research of specific signs of the smart-contract was conducted through a prism of the theory of will and a expression of will of Pokrovsky (1998), Ioffe et al. (2003), Oygensicht (1983), Nemov (2003), Kechekian (1958), Novitsky (1954), Krasavchikov (2005) and others. Methods - General scientific methods of knowledge made the methodical basis of the research: the historical, allowed to carry out a comparative analysis of the legislation and doctrine in a historical retrospective. The analogies, as a result of which application have concluded the possibility of implementation of international law to the Russian reality. The modelling, which allowed to create a design of the relations between the author and the person, using the result of its intellectual work, using the smart contract. The analysis and synthesis which were a basis for the scientific conclusions drawn in research. When carrying out research also particular and proper methods are used (comparative and legal, legalistic, etc.).