Signs of publicly available information. Public information

Concept

Public information includes generally known information and other information to which access is not restricted.

Part 1 Art. 7 Federal Law dated July 27, 2006 N 149-FZ “On information...”

Information about the time of broadcasting of television and radio programs, as well as any information about actual events in the surrounding reality, was considered publicly accessible.<1>. It should be borne in mind that this clarification was given in the context of copyright legislation, while the inability of certain information to be protected by means of copyright law does not mean in itself that another legal regime that limits access to it is not applicable to such information, which excludes the possibility of classifying it as publicly accessible. purposes of the Law (trade secrets, official secrets, state secrets, etc.).

<1>Paragraph 1 of the information letter of the Supreme Arbitration Court of the Russian Federation dated September 28, 1999 No. 47 “Review of the practice of considering disputes related to the application of the Law of the Russian Federation “On Copyright and Related Rights”

Generally known information

The concept of general knowledge is the most developed in procedural law, where the general knowledge of the relevant circumstance is the basis for exemption from proof (part 1 of article 61 of the Civil Procedure Code of the Russian Federation, part 1 of article 69 of the Arbitration Procedure Code of the Russian Federation).

we can come to the conclusion that generally known information can be understood as information known to a wide range of people and available for review in publicly available and verifiable sources, such as: information from government statistics<2>, information about scientific discoveries contained in scientific publications, media reports, information contained in open state registers, etc. The category of publicly available information includes information on placing orders for the supply of goods, performance of work, provision of services for state (municipal) needs, contained on the website: www.zakupki.gov.ru (Part 4 of Article 4FZ of April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to ensure state and municipal needs"). Publicly available information is the so-called open data posted on the official websites of government agencies on the Internet.

<2>Part 10 Art. 5FZ of November 29, 2007 N 282-FZ “On official statistical accounting and the system of state statistics in the Russian Federation.”

Usage

Publicly available information can be used by any persons at their discretion, subject to the restrictions established by federal laws regarding the dissemination of such information.

- part 2 art. 7 Federal Law dated July 27, 2006 N 149-FZ “On information...”

some information may be classified as publicly available due to its availability on the Internet, but at the same time be prohibited for distribution in Russia due to being classified as extremist materials (see paragraph 3 of Article 1, Articles 11-13 of the Federal Law "On Combating Extremist Activities" "). Moreover, despite the existence of a ban on the dissemination of such information, its use in other ways, for example through personal study, is not prohibited.

Rights to the link as a source

The owner of information that has become publicly available by his decision has the right to demand that persons disseminating such information indicate themselves as the source of such information.

- part 3 art. 7 Federal Law dated July 27, 2006 N 149-FZ “On information...”

relations related to the regulation of intellectual property are beyond the scope of the Law. The scope of application of the right of the owner of information to indicate himself as a source of publicly available information is much more modest and, as a general rule, covers only that information that does not have an author in the understanding of intellectual property legislation. If the author of the information and its owner coincide in the sense of the Law, the author’s right to the name will absorb the right of the owner of the information. In the event of a discrepancy between the same person as the author and the owner of the information, it is, in principle, possible to simultaneously indicate both the author, in the exercise of his right to name, and the owner of the information as its source, however, provided that the rights of the author and (or) copyright holder of the relevant information are respected. Finally, it is not excluded situations where information is not protectable (for example, news reports), in such cases the owner of such information, who has made it publicly available, can fully exercise the right to indicate his name as its source.

A.I. Savelyev. Commentary on 149-FZ

Open data

Information posted by its owners on the Internet in a format that allows automated processing without prior human changes for the purpose of reuse is publicly available information posted in the form of open data.

- part 4 art. 7 Federal Law dated July 27, 2006 N 149-FZ “On information...”

Information in the form of open data is posted on the Internet, taking into account the requirements of the legislation of the Russian Federation on state secrets. If posting information in the form of open data may lead to the dissemination of information constituting a state secret, the posting of this information in the form of open data must be stopped at the request of the body empowered to dispose of such information.

- part 5 art. 7 Federal Law dated July 27, 2006 N 149-FZ “On information...”

If the posting of information in the form of open data may entail a violation of the rights of owners of information, access to which is limited in accordance with federal laws, or a violation of the rights of subjects of personal data, the posting of this information in the form of open data must be terminated by a court decision. If the placement of information in the form of open data is carried out in violation of the requirements of the Federal Law of July 27, 2006 N 152-FZ "On Personal Data", the placement of information in the form of open data must be suspended or terminated at the request of the authorized body for the protection of the rights of subjects personal data.

1. Public information includes generally known information and other information to which access is not limited.

2. Public information can be used by any persons at their discretion, subject to the restrictions established by federal laws regarding the dissemination of such information.

3. The owner of information that has become publicly available by his decision has the right to demand that persons distributing such information indicate themselves as the source of such information.

4. Information posted by its owners on the Internet in a format that allows automated processing without prior human changes for the purpose of re-use is publicly available information posted in the form of open data.

5. Information in the form of open data is posted on the Internet, taking into account the requirements of the legislation of the Russian Federation on state secrets. If posting information in the form of open data may lead to the dissemination of information constituting a state secret, the posting of this information in the form of open data must be stopped at the request of the body empowered to dispose of such information.

6. If the posting of information in the form of open data may entail a violation of the rights of owners of information, access to which is limited in accordance with federal laws, or a violation of the rights of subjects of personal data, the placement of this information in the form of open data must be stopped by decision court If the placement of information in the form of open data is carried out in violation of the requirements of the Federal Law of July 27, 2006 N 152-FZ "On Personal Data", the placement of information in the form of open data must be suspended or terminated at the request of the authorized body for the protection of the rights of subjects personal data.

Article 8. Right of access to information

1. Citizens (individuals) and organizations (legal entities) (hereinafter referred to as organizations) have the right to search and receive any information in any forms and from any sources, subject to compliance with the requirements established by this Federal Law and other federal laws.

2. A citizen (individual) has the right to receive from state bodies, local self-government bodies, and their officials in the manner established by the legislation of the Russian Federation, information that directly affects his rights and freedoms.

3. The organization has the right to receive from state bodies and local self-government bodies information directly related to the rights and obligations of this organization, as well as information necessary in connection with interaction with these bodies when this organization carries out its statutory activities.

4. Access to:

1) regulatory legal acts affecting the rights, freedoms and responsibilities of humans and citizens, as well as establishing the legal status of organizations and the powers of state bodies and local governments;

2) information about the state of the environment;

3) information on the activities of state bodies and local self-government bodies, as well as on the use of budget funds (except for information constituting state or official secrets);

4) information accumulated in open collections of libraries, museums and archives, as well as in state, municipal and other information systems created or intended to provide citizens (individuals) and organizations with such information;

5) other information, the inadmissibility of restricting access to which is established by federal laws.

laws, laws of the constituent entities of the Russian Federation and regulatory legal acts of local governments. A person wishing to gain access to such information is not required to justify the need to obtain it.

(as amended by Federal Law dated July 27, 2010 N 227-FZ)

6. Decisions and actions (inaction) of state bodies and local self-government bodies, public associations, officials that violate the right to access to information can be appealed to a higher body or higher official or to the court.

7. If losses were caused as a result of an unlawful refusal of access to information, untimely provision of information, provision of information that was knowingly unreliable or inconsistent with the content of the request, such losses are subject to compensation in accordance with civil law.

8. Information is provided free of charge:

1) on the activities of state bodies and local government bodies, posted by such bodies in information and telecommunication networks;

2) affecting the rights and obligations of the interested person established by the legislation of the Russian Federation;

3) other information established by law.

22. General characteristics of relations in the field of communications and mass communications.

- an individual, which are provided by him about himself.

There is free access to publicly available data with the written permission of the subject. This may also include information about the subject that is not provided for by law.

A subject is an individual whose information is collected, stored, processed and used for any purpose by an operator (legal or natural person, municipal or state body).

What types of information are they?

The list of publicly available personal information includes:

Peculiarities

Publicly available personal information is presented in such sources as a passport or other identification card, driver’s license, military ID, work record book, or education diploma.

Not in all cases there is a need for written permission to use them; sometimes a signature or a “tick” in the required box is sufficient (for example, when filling out applications via the Internet).

General information can be placed in publicly accessible sources. They store information about subjects, including various directories with telephone numbers or addresses.

FSTEC - the federal service for technical and export control issues licenses to organizations that provide services to others to create personal data protection systems. The data protection system is created for your own needs, a license is not required for it.

An individual has the right to obtain information about the operator, as well as find out the specific purpose pursued by the operator during processing.

The subject has the full right to submit an application, the approval of which allows you to clarify, block or destroy personal information in the event that it is outdated, invalid, incomplete or its presence is not necessary during processing.

Among other things, an individual has the right to request from the operator access to his personal information, as well as to familiarize himself with the means of processing information. Operators are specialists involved in processing information about a person..

Bodies for processing personal data are all organizations that collect, process, accumulate and store information about employees, clients, and suppliers.

Read more about in what cases an agreement for the processing of personal data is necessary.

When are they included in open sources?

Inclusion of information in publicly available sources occurs in various situations, for example:

during employment and concluding an employment contract;
during the census process;
establishing trade relations, etc.

The subject's personal data is classified according to the amount of personal information about the person and the degree of importance. Any transactions with them are carried out strictly within the framework of legislative acts and are subject to protection.

Operators are required to organize the safety of the work process. They must ensure that subjects' personal information is completely protected from access by unauthorized persons.

During the collection process, the operator is required to obtain written permission for further processing. The processing includes information about the subject and the operator (full name, address), the purpose of processing and a list of necessary information, as well as a description of the operations that will be performed with them.

This is the first part of my article “On “quoting” photographs, open access and substitution of concepts”, which was published in the magazine “Economy and Law” No. 1/2017 and posted on Zakon.ru with the kind consent of the magazine’s editors.

The link to this work will look like this: Rozhkova M.A. On the content of the concepts “publicly accessible information”, “bringing to the public”, “freedom of use of works permanently located in a place open to the public” [Electronic resource] // Law.ru. 2017. January 28.URL:

In most cases, when they talk about being in " open access on the Internet", we are talking about "publicly available information" defined in Art. 7 of the Federal Law of July 27, 2006 No. 149-FZ “On Information, Information Technologies and Information Protection” (hereinafter referred to as the Information Law). In Part 4 of Art. 7, this concept is disclosed as follows: “Information posted by its owners on the Internet in a format that allows automated processing without preliminary changes by a person for the purpose of reuse is publicly available information posted in the form of open data.”

In this regard, A. Savelyev points out: “In essence, the Law thereby introduces a presumption of openness of information: any information is publicly available, except that to which access is limited. Classifying information as publicly available in the most general form means that any person, without specifying reasons or purposes, can receive such information and use it at his own discretion, subject to the restrictions on its dissemination established by federal law.”

At the same time, it must be borne in mind that the mentioned Law is designed to regulate relations not regarding intellectual property, but others - arising in the exercise of the right to search, receive, transmit, produce and distribute information; application of information technologies; ensuring information security(Part 1, Article 1). This circumstance is specifically indicated in Part 2 of Art. 1 of the Law on Information: “The provisions of this Federal Law do not apply to relations arising during the legal protection of the results of intellectual activity and equivalent means of individualization, except for the cases provided for by this Federal Law.”

Other norms are subject to application to relations regarding intellectual property - the norms of part four of the Civil Code of the Russian Federation. To indicate cases of posting works on the Internet, in particular, in sub. 11 clause 2 art. 1270 of the Civil Code of the Russian Federation uses the concept “ bringing to public notice" This form of distribution of works of copyright and related rights is defined in the Code as “bringing a work to the public knowledge in such a way that any person can access the work from any place and at any time of his own choice.”

For the purposes of this work, there is no need to clarify whether communication to the public should be considered as part of the law to a communication to the public (see Article 8 of the WIPO Copyright Treaty (Geneva, December 20, 1996; hereinafter referred to as the WCT) or as independent right for distribution (see Article 8(1), Article 12 of the WIPO Performances and Phonograms Treaty (Geneva, December 20, 1996; hereinafter referred to as the WPPT). This is due to the fact that in any case we are talking specifically about the implementation of " “Internet powers” - placing a work in the public domain on the Internet, which involves taking two steps: firstly, placing objects “in digital form in a digital environment” and, secondly, access to these objects by any Internet user.

Thus, bringing any work to the public’s attention on the Internet involves “digitizing” the work (translation into digital form) and then publishing it on any information resource (on a social network, on a website, on a home or news page, etc.). d.).

Cases of making works available to the public should be distinguished from the use of works, “ permanently located in a place open to the public"(Article 1276 of the Civil Code of the Russian Federation). Here we are talking about works not on the Internet, but in the real world - these are works of fine art (in particular, sculpture, painting), works of architecture (buildings), landscape art, etc., allowing constant public viewing and located, as usually in open public places with free admission. A striking example is the Tsaritsyno Museum-Reserve, which includes a landscape park, works of architecture, sculptures, etc.

The freedom provided by law to use works “permanently located in a place open to the public” is, in particular, the opportunity to photograph and distribute images of objects protected by copyright (including by posting photographs in the public domain on the Internet). Such permission in the law of many countries is called freedom of panorama(from German. Panoramafreiheit) and is regulated by special standards, sometimes quite strict.

For example, on October 7, 2016, the French Parliament approved the Law on the Restriction of Freedom of Panorama, which allows individuals (not organizations) to photograph buildings and sculptures located in places open to the public, but only for non-commercial use - these provisions were included in Art. L. 122-5 French Intellectual Property Code.

Unfortunately, Russian legislation does not clarify what is meant by “freedom of use of works permanently located in a place open to the public.” However, some clarifications on this matter have already been given by the Supreme Court of the Russian Federation. For the purposes of this work, it is especially important to note that in para. 3 paragraph 13 of the Review of judicial practice in cases related to the resolution of disputes on the protection of intellectual rights, approved by the Presidium of the Supreme Court of the Russian Federation on September 23, 2015, directly states: “The Internet is not a place open to free access, within the meaning of Art. 1276 of the Civil Code of the Russian Federation.”

Summarizing the above, it should be noted that it is not very successful to use the expression “is in the public domain” for legal characteristics.

If we are talking about the use of information that is publicly available on the Internet, it is advisable to designate it as publicly available information.

If the need for legal qualification arose in relation to issues related to the use of intellectual property, two situations are likely.

If a work has been distributed on the Internet (it is posted on the Internet in the public domain), we are talking about bringing to public attention.

If a work was photographed or otherwise reproduced in a public place with free admission (for example, in a park, square, etc., and sometimes indoors - in a museum, at an exhibition), then the use of the work is implied , permanently located in a place open to the public.

P.S. IP CLUB news feed in the field of intellectual property and Digital Law in

The most adequate (in my opinion) classification of information by type of access is shown in the diagram below. It fully complies with Russian legislation, but there are many nuances...

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Federal Law of the Russian Federation dated July 27, 2006 N 149-FZ “On information, information technologies and information protection” defines the division of information (depending on the category of access to it) into publicly available information and information to which access is limited by federal laws (Art. .5).

In the same article, information is classified according to the method of distribution. What is important here is the isolation of information that, in accordance with federal laws, is subject to provision or distribution. Those. It is illegal to restrict access to this information. What information are we talking about:

Information to which access cannot be restricted

The list of information, access to which cannot be limited, is specified in Article 10 of the same Federal Law of the Russian Federation dated July 27, 2006 N 149 “On information...”:

regulatory legal acts affecting the rights, freedoms and responsibilities of humans and citizens, as well as establishing the legal status of organizations and the powers of state bodies and local governments;
information on the state of the environment;
information on the activities of state bodies and local self-government bodies, as well as on the use of budget funds (except for information constituting state or official secrets);
information accumulated in open collections of libraries, museums and archives, as well as in state, municipal and other information systems created or intended to provide citizens (individuals) and organizations with such information;
other information, the inadmissibility of restricting access to which is established by federal laws.

This “other information” is established in federal laws relating to certain specific areas of activity, for example, in the laws on charitable activities and non-profit organizations or in the laws on joint stock companies (example for joint stock companies).

State secret

Regulation of issues related to this type of secrets is entrusted to the Law of the Russian Federation of July 21, 1993 N 5485-I “On State Secrets”. The list of information constituting state secrets is defined in Article 5, where they are grouped in the following areas:

military information
information in the field of economics, science and technology
information in the field of foreign policy and economics
information in the field of intelligence, counterintelligence and operational-search activities, as well as in the field of countering terrorism

Confidential information

The list of confidential information was published in Decree of the President of the Russian Federation of March 6, 1997 N 188 “On approval of the list of confidential information.” The types of confidential information according to this decree include:

Information about facts, events and circumstances of a citizen’s private life, allowing his personality to be identified ( Personal Information), with the exception of information subject to dissemination in the media in cases established by federal laws.
Information constituting secrecy of investigation and legal proceedings, as well as information about protected persons and measures of state protection carried out in accordance with Federal Law of August 20, 2004 N 119-FZ “On state protection of victims, witnesses and other participants in criminal proceedings” and other regulatory legal acts of the Russian Federation.
Official information, access to which is limited by government authorities in accordance with the Civil Code of the Russian Federation and federal laws ( official secret).
Information related to professional activities, access to which is limited in accordance with the Constitution of the Russian Federation and federal laws (medical, notarial, attorney-client confidentiality, confidentiality of correspondence, telephone conversations, postal items, telegraphic or other messages, and so on).
Information related to commercial activities, access to which is limited in accordance with the Civil Code of the Russian Federation and federal laws ( trade secret).
Information about the essence of the invention, utility model or industrial design before the official publication of information about them.

In fact, often the same information can belong to different categories of secrets. For example, information that constitutes medical confidentiality is probably someone’s personal data. Some types of secrets defined in the federal laws of the Russian Federation will be described below.

Types of secrets in Russian legislation

trade secret

Information of any nature (production, technical, economic, organizational and others), including the results of intellectual activity in the scientific and technical field, as well as information about methods of carrying out professional activities that have actual or potential commercial value due to their unknownness to third parties , to which third parties do not have free access legally and in respect of which the owner of such information has introduced a trade secret regime.

N 98-FZ "On trade secrets"

Banking secrecy (secrecy of bank deposits)

Information about transactions, accounts and deposits of its clients and correspondents, as well as other information established by the credit institution

Official secret

Official information, access to which is limited by government authorities in accordance with the Civil Code of the Russian Federation and federal laws

Presidential Decree of March 6, 1997 No. 188
139 Civil Code of the Russian Federation
Federal Law "On the Fundamentals of the Civil Service of the Russian Federation"
Decree of the Government of the Russian Federation of November 3, 1994. No. 1233

The secret of credit history

Information that characterizes the borrower’s fulfillment of its obligations under loan (credit) agreements and is stored in the credit history bureau

The Mystery of Insurance

Information about the policyholder, the insured person and the beneficiary, their state of health, as well as the property status of these persons

946 Civil Code of the Russian Federation

Secret of the will

Information concerning the contents of the will, its execution, modification or cancellation

1123 Civil Code of the Russian Federation

Tax secret

Any information about the taxpayer received by the tax authority, internal affairs authorities, the body of the state extra-budgetary fund and the customs authority (with a number of exceptions)

146-FZ "Tax Code of the Russian Federation"

The secret of child adoption

Judges who made a decision on the adoption of a child, or officials who carried out state registration of adoption, as well as persons otherwise aware of adoption, are obliged to keep the secret of the adoption of a child.

223-FZ Family Code R

Medical secrecy

Information about whether the citizen has a mental disorder, the facts of seeking psychiatric help and treatment in an institution providing such care, as well as other information about the state of mental health

117-FZ "On psychiatric care and guarantees of citizens' rights during its provision"

Medical mystery

Information about the fact of seeking medical help, the citizen’s state of health, diagnosis of the disease, other information obtained during the examination and treatment of the citizen, as well as information about artificial insemination and embryo implantation, as well as the identity of the donor. Results of examination of the person entering into marriage.

Fundamentals of the legislation of the Russian Federation for the protection of the health of citizens
223-FZ Family Code of the Russian Federation

Privacy of correspondence, telephone conversations, postal, telegraph or other messages

On the territory of the Russian Federation, the secrecy of correspondence, telephone conversations, postal items, telegraphic and other messages transmitted over telecommunication networks and postal networks is guaranteed.

176-FZ "On Postal Services"
126-FZ "On Communications"
Code of Criminal Procedure of the Russian Federation

Secret of private life (personal secret)

The right to privacy means the opportunity granted to a person and guaranteed by the state to control information about himself, to prevent the disclosure of personal, intimate information.

Constitution of the Russian Federation
150 Civil Code of the Russian Federation

Auditor confidentiality

Any information and documents received and (or) compiled by the audit organization and its employees, as well as by the individual auditor and employees with whom they have concluded employment contracts, when providing services (with a number of exceptions)

307-FZ "On auditing activities"

Secrecy of legal proceedings (secrecy of investigation and legal proceedings)

Preliminary investigation data is not subject to disclosure... can be made public only with the permission of the prosecutor, investigator, inquirer and only to the extent that they consider it acceptable, if the disclosure does not contradict the interests of the preliminary investigation and is not associated with a violation of the rights and legitimate interests of the participants criminal proceedings. Disclosure of data on the private life of participants in criminal proceedings without their consent is not permitted

241 Code of Criminal Procedure of the Russian Federation
10 Code of Civil Procedure of the Russian Federation
11 APKRF
166 Code of Criminal Procedure of the Russian Federation
Presidential Decree dated March 6, 1997 No. 188

Attorney-client privilege (secret of judicial representation)

Any information related to the provision of legal assistance by a lawyer to his client

63-FZ "On advocacy and advocacy in the Russian Federation"

The secret of notarial acts (notarial secret)

A notary is obliged to keep secret information that has become known to him in connection with his professional activities. The court may release the notary from this duty of secrecy if a criminal case has been brought against him in connection with the commission of a notarial act. Since notaries provide information about their notarial acts to notarial chambers, officials of these chambers are also required to maintain notarial secrecy.

Fundamentals of the legislation of the Russian Federation on notaries

Secret of Confession

A clergyman cannot be held accountable for refusing to testify on circumstances that became known to him from confession.

Secrecy of voting

The counting of ballot papers is carried out in such a way that the secrecy of voting is not violated.

51-FZ "On elections of deputies of the State Duma of the Federal Assembly of the Russian Federation"
19-FZ "On the elections of the President of the Russian Federation"
67-FZ "On the basic guarantees of electoral rights and the right to participate in a referendum of citizens of the Russian Federation"

Confidentiality of information about security measures in relation to an official of a law enforcement or regulatory agency

Disclosure of information about security measures applied in relation to a judge, juror or other person involved in the administration of justice, bailiff, bailiff, victim, witness, other participants in criminal proceedings, as well as in relation to their relatives, if this act was committed by a person to whom this information was entrusted or became known in connection with his official activities

311 of the Criminal Code of the Russian Federation

Journalistic (editorial) confidentiality

The editors do not have the right to disclose in disseminated messages and materials information provided by a citizen under the condition of keeping them secret. The editors are obliged to keep the source of information secret and do not have the right to name the person who provided the information under the condition of non-disclosure of his name, except for the case when the corresponding requirement was received from the court in connection with a case pending before it. The editors do not have the right to disclose in disseminated messages and materials information that directly or indirectly indicates the identity of a minor who has committed a crime or is suspected of committing one, or who has committed an administrative offense or an antisocial act, without the consent of the minor himself and his legal representative.

2124-1-FZ "On the Mass Media"

Secret of religion

Information about attitudes towards religion, about professing or refusing to profess religion, about participation or non-participation in divine services, other religious rites and ceremonies, about activities in religious associations, about teaching religion

125-FZ "On freedom of conscience and religious associations"

The secret of information about military personnel of the internal troops of the Ministry of Internal Affairs

Information about the places of deployment or redeployment of formations and military units of the internal troops, as well as information about the military personnel of the internal troops who took part in suppressing the activities of armed criminals, illegal armed groups and other organized criminal groups, as well as information about their family members

27-FZ "On the internal troops of the Ministry of Internal Affairs of the Russian Federation"

Other types of secrets

In general, Lukatsky found as many as 65 types of secrets in our legislation. The problem is that some of them mean the same concept, some are special cases of others (or overlap), and others are completely rudimentary...