The concept of "information" and its features in the context of legal regulation of the Internet. The concept and features of information The legal definition of information is
To date, there are many different definitions of the concept of information. However, since law is a social regulator, it makes no sense to dwell on those concepts of information that reflect the philosophical or natural science aspects of the concept of information. A lawyer should be primarily interested in the aspect of any phenomenon related to how this phenomenon manifests itself in relation to a person and society. Therefore, the category of information for the purposes of civil law research should be considered precisely from the point of view of what it is in the process of human life. Obviously, the dominant, and most relevant to reality, concept of information is the one that sees the essence of information as a result of reflection by human consciousness of the surrounding reality and identifies information with an image that has a semantic content and sign form. Signs are only a form of existence and a means of transmitting information. For a person, it is the meaning, the content of information, that is of paramount importance. The term "knowledge" reflects the most, in our opinion, the most important aspect of this content - pragmatic. Indeed, for a person, any information is, first of all, knowledge, evaluated in terms of usefulness for the mentioned adaptive purposes. This, it seems to us, is the essence of information.
Solving the problem of choosing the concept of "information", one should consider them not only in a scientific context, but also taking into account the need for knowledge and transformation of reality. In the simplest everyday sense, the term "information" is usually associated with some information, data, knowledge, etc. about something, about someone. Translated from Latin, "informatio" means information, clarification, presentation. S.I. Ozhegov gives the following definition of information: this is information about the surrounding world and the processes taking place in it, perceived by a person or a special device, and by information he understands knowledge in any field, news, messages, knowledge, ideas about something .
Since information is the result of a reflection of reality, it means that it must contain not just knowledge, but knowledge about something - about reality, its objects and phenomena. Therefore, it should be noted that from a functional point of view, information is information about objects and phenomena of the reality surrounding the subject of cognition. It is from this point of view that information is defined by law (Federal Law of July 27, 2006 N 149-FZ "On Information, Information Technologies and Information Protection").
By defining information as information, the legislator thereby indicates its subjective and subjective nature. The subjective nature of information is expressed in the fact that it is relevant or potentially belongs to someone. At the same time, information is always information about something, that is, it is always objective. In this regard, it is possible to single out the properties that characterize information as a legal category based on its definition given in the Law on Information (we are talking about a legal definition, and not about scientific discussions), these are: physical inalienability, content and independence of the forms of providing information .
Art. 5, called "Information as an object of legal relations", which establishes that information can be the object of various legal relations, such as: public, civil and others. In this regard, it is appropriate to note that in the same article of the Law one of the existing classifications, subdividing information, depending on the possibility of free access to it by third parties, into public and non-public (restricted information). The criterion for such a classification is the measure of importance and the measure of the availability of certain information. In this regard, as noted by O.A. Cities, it should be borne in mind "... that there is no absolutely accessible information in respect of which this or that regime is established. There will always be actual or legal obstacles that make it difficult to access certain blocks of information" .
Speaking about information, it is necessary to keep in mind two more properties that determine its role and significance in a society with a market economy.
Firstly, information cannot be physically alienated from: its producer and from any person in whose use it turned out to be. Any information carries knowledge that is inherently inalienable. The person who owns them can transfer knowledge to other persons (the whole system of education is built on this), while continuing to be their owner.
Secondly, information has the property of separability from its producer. Thanks to the material carrier, it becomes a commodity of mass distribution and, accordingly, an independent object of law.
The legislator approaches separately the definition of the legal status of information considered to be an intangible (non-property) good, and material carriers of information classified as property values. With regard to information as a concept as a whole, it is limited to silence, while on material carriers it extends the provisions of the Civil Code of the Russian Federation related to the right of ownership. According to paragraph 2 of Art. 4 of the Law of the Russian Federation "On Information, Informatization and Protection of Information" the legal regime of information resources (material information carriers) is determined by the rules establishing the ownership of individual documents and individual arrays of documents, documents and individual arrays of documents in information systems. Accordingly, information resources that are the property of the organization, as stated in paragraph 5 of Art. 6 of the same Law are included in their property in accordance with civil law.
An equally important task of civil law science today is to identify the signs of information that distinguish and separate it from other objects of civil rights. V.A. Kopylov notes that the legal properties of information entail certain consequences in the circulation of information, they are fixed in the rules of law and are implemented in information legal relations. Moreover, the features of information as an object of civil rights also determine the specifics of the mechanism of legal regulation of relations arising from information, the features of its legal regime. There are several approaches to determining the basic properties of information as an object of civil rights. It is customary to single out the following signs of information.
Information has the property of physical inalienability. It cannot physically be alienated from its producer or transferring entity. Based on this, when transferring information from one person to another, the procedure for its alienation is mediated by the transfer of rights to use it, and information is transferred along with these rights. Considering this feature, V.A. Kopylov proposes, when formulating a rule governing the process of alienation of information, to talk not about the procedure for the alienation of information, but about the alienation of the right to use information.
Information is a complex and composite object, in which the results of work and creativity are present in different proportions.
The next sign of information is manifested in its dual nature. . It consists in the fact that when included in circulation, information is always (or most often) displayed on a material carrier, in connection with which there is a dual unity of information and its material carrier. As a result, on the one hand, information is intangible as a result of primarily mental activity, on the other hand, it is material, since it finds its expression on a material carrier. It is this feature of information that often becomes a stumbling block in legal science. Some call it a material, real object (G.A. Lobanov ). Others, for example, I.V. Savelyeva , they say that the essence of information is non-material and that information cannot be reduced to the material carrier in which it is embodied. It seems that the latter point of view is more correct and justified, since the main value of information for subjects of law lies in the information that composes it, and not in the material form in which it is expressed.
Information is inconsumable, it is subject to moral, but not physical deterioration.
Information is replicable. It can be replicated and distributed in unlimited quantity copies without changing its content. It follows that, as a result of dissemination, the same information may simultaneously belong to an unlimited circle of persons.
MM. Pickles names the following features that characterize information as a legal category: known independence of information, the possibility of multiple use, the preservation of transmitted information by the transmitting subject, the ability to process, integrate and compress, the possibility of mathematical analysis, consistency, communication.
V.A. Kopylov also offers such a sign as exemplarity , by which he understands the possibility of disseminating information not by itself, but on a material carrier. However, it seems that the allocation of this feature is unreasonable. Firstly, given property information is derived from the sign of isolation, since the copy is nothing but one of the ways of objectifying information. Secondly, we believe that it is necessary to distinguish between the circulation of information as an intangible good and the circulation of its material carrier. These are two independent objects of civil rights, although, as noted earlier, they are closely related to each other.
Some authors, in addition to those mentioned, point to the following features of information as an independent object of civil rights . First of all, note that the information is subjective. It's hard to disagree with this. Information arises as a result of human activity, is perceived and processed by his consciousness. In this regard, there is always the potential for information to be distorted by the transmitting or receiving subject. People perceive the same event differently. The risk of changing information due to subjective circumstances is unusually high. In addition, information after its perception by the subject is processed and becomes part of his consciousness. Thus, the connection of information with the subject and its subjective nature are obvious.
On the basis of the foregoing, it can be concluded that information is a blessing that equally possesses both properties characteristic of all objects of civil rights and features that allow us to talk about the need to form its own legal regime for it.
Voinikanis Elena Anatolievna
Associate Professor, Faculty of Philosophy, Moscow State University
In the texts of normative acts, the concept of "information" has been used for a long time and quite widely, but this concept acquired an independent meaning only in the middle. 90s of the last century, with the beginning of the intensive development of information and communication technologies, which contributed to the involvement of Russia in global processes related to informatization. Therefore, from the very beginning it is necessary to distinguish between the legal use of the concept of "information" in its common sense and, on the other hand, its use as a central concept for regulating specific legal relations directly related to information processes in society. The need for a definition that defines the boundaries of the application of the concept arises only in the second case.
The aforementioned independent meaning of the concept of "information" is closely connected with the prospects for the development of the information and telecommunications technology market - the construction of an "information society". Thus, the inclusion of the concept of "information" in legal terminology, as well as the intensive development of the relevant industry, "information law", directly depends on the adoption of the ideology of the "information society", which sets the legal system the task of creating the most favorable conditions for its formations.
Thus, law is inseparable from general social processes and necessarily responds to ongoing changes. In particular, it "translates" into its own language the new social and economic constants that begin to determine the life of society in one way or another. This is how new objects of legal regulation appear (for example, "information", "website" or "domain name"). Entry of a new object into common system legal norms is accompanied by the development of its legal definition.
Consider the legal definition of "information" in Russian legislation. In Article 128 of the Civil Code of the Russian Federation, "information" is included in the list of types of objects of civil rights. In other words, the information is singled out as an independent type of objects, however, no specific qualities due to which such a separation is made are given in the Code. On the other hand, with a literal reading of the Code (Chapter 6 of which contains not only a list of types of objects of civil rights, but also their general characteristics) only official and commercial secrets should be classified as information. It is obvious that such an understanding of information is not only extremely narrow, but also does not correspond to the established practice of applying the concept in the civil law sphere.
A legally fixed definition of "information" first appears in the Federal Law of the Russian Federation "On Information, Informatization and Protection of Information" dated February 20, 1995, where "information" means "information about persons, objects, facts, events, phenomena and processes, regardless of forms of their presentation. It should be noted that along with the definition of "information" itself, the Law also contains a definition of "documented information", i.e. distinguishes between information as such, as an intangible object, and information associated with a material carrier.
The problem is that the legal regime is established only for documented information. This position does not give an answer to the specific requests of the information society. The above definition of "information" is obviously too general (reminiscent of a similar definition from S.I. Ozhegov's Dictionary of the Russian Language), and the subsequent "decoding" (limiting information resources to documented information) is too particular. The inefficiency of the Federal Law of the Russian Federation "On Information" is not least due to precisely these shortcomings. The main problem, as in the case of Article 128 of the Civil Code of the Russian Federation, is that the object of legal regulation declared as existing and described in this definition remains not included in the system of civil law relations.
Thus, from the question of a correctly formulated definition, we turn to the question of the relationship of information (and the so-called "information objects") with other legal concepts and institutions. In connection with the latter, the following dilemma arises: either the need to create a special legal space (in the event that this is required by the specifics of a new object), or the ability to use existing legal means (which may turn out to be no less effective than newly created ones). The first point of view was held by the untimely departed V.A. Dozortsev, the second is defended, for example, by I.L. Bachilo.
If we talk about the specifics of the legal regulation of information within the Internet, the following should be noted. First, the Internet in the strict sense of the word cannot be considered as an object of legal relations, whether civil or public. Legal relations arise here not so much about the Internet itself as computer network, how much about those objects that are in one way or another connected with the functioning of such a network. We can say that the properties of the Internet itself are revealed only in connection with the operation of the corresponding objects and are inseparable from the latter. This thesis was repeatedly expressed in his publications and speeches by M.V. Yakushev.
Secondly, objects directly related to the Internet are either material objects well known to the law (for example, goods offered in an electronic catalog), or information objects (protected, depending on the specific type, by intellectual property rights and other special rules). ). A feature of information objects is the lack of "binding" to the material carrier and the form of information presentation. This characteristic affects not only the application of intellectual property law institutions, but also the regulation, for example, of electronic document management related to electronic commerce.
Thirdly, the regulation of grid facilities requires, as practice shows, an integrated approach that combines the use of traditional institutions of law with the development of new institutions and concepts that do not so much reorganize the system of legal regulation as a whole - since revolutionary interventions that destroy "everything to the ground" also undesirable in the sphere of law, as well as in politics - how much they complement already existing systems of norms. An example is the concept of "access", which seems to be recognized as the main criterion or "common denominator" when tracking any legal facts related to the transfer of ownership of the results of intellectual activity.
At the last, fourth conference "Law and the Internet: theory and practice", a report on this topic was read by V.O. Kalyatin. Fourth, the legal regulation of the Internet poses with new urgency the problem of delimiting the spheres of regulatory regulation between the law itself (a tool of legislative regulation provided by coercive mechanisms at the state level) and other systems of (self) regulation (the main source of which is the so-called "Internet community" ).
Fifth, the limitation of the scope of traditional institutions of copyright protection, caused by the intervention of public interests. An example here is the broad interpretation of the "fair use" doctrine in relation to electronic objects of copyright, confirming the general fact that a necessary condition for the optimal functioning of the information society is the freedom of dissemination of information.
The result of natural science and philosophical research was the identification of the main essential features or properties of information that are universal in nature and manifest in any form of existence and functioning of information.
Firstly, the systemic nature of information, which manifests itself in the fact that information acts as a means of the systemic organization of matter, and also itself implies a systemic organization.
Secondly, the non-material nature of information and its substantive lack of independence, which manifests itself in the impossibility of the existence and functioning of information without a material carrier. At the same time, information can be easily and without loss transferred from one material carrier to another.
It should be noted that in modern legal literature the ability of information to manifest its properties only through material objects is called the "materiality" of information. As the researchers emphasize, information is a measure of organization and a means of organizing and developing any form of matter, so that any matter is informational. The informational and material beginnings together represent the twofold fundamental principle of the existing world.
Thirdly, the continuity of information, which is associated with its substantive lack of independence and is manifested in the fact that all changes in information are accompanied by changes in material systems that are progressive in nature, ensuring the continuity of states, both at the physical and at the informational level.
Fourth, the inexhaustibility of information, which manifests itself in the fact that when information is transferred from one medium to another, it can remain on the first medium, i.e., the amount of information does not decrease as a result of its use. As a result, information can have an unlimited number of users and still remain unchanged.
Fifth, the transformability of information, i.e. the ability to transmit the same information in different forms.
Sixth, the universality of information, which manifests itself in the fact that its content can be associated with any phenomena and processes of physical, biological, social reality.
Seventh, a certain quality of information, understood as a set of information properties that characterize the degree of its compliance with the needs of a given system.
The quality of information is often referred to as relevance and is interpreted as information security.
Eighth, casuistry, that is, the ability of information to cause consequences.
In addition, modern researchers distinguish such properties of information as virtuality, separability, as well as vulnerability and destructibility.
The systemic nature of information, which is expressed in the fact that information not only serves as a means of the systemic organization of matter, but also itself implies a systemic organization, at the level of social relations is manifested in the inclusion of information in the systemic organization and the process of human activity, as well as in the control over these processes. Information retains its quality and significance if it contains certain information that can circulate in space and time; if information is capable of aggregation, division, isolation while maintaining its qualities and properties.
In social relations, such properties of information as its substantial non-independence, i.e., the impossibility of existence and functioning without a material carrier, as well as the property of continuity of information associated with this feature, i.e., the relationship of changes in information with changes in the corresponding material carriers, also change.
In fact, information undergoes conscious processing, design and presentation. The materiality of information is combined with the intellectual, conscious activity of individuals.
Here, virtuality is manifested as the property of information to acquire a form that is not always amenable to direct perception, but from which it can be transformed into another form that is convenient for the user. Human thought is also a virtual form of information, as long as it is not clothed in the form material representation.
Information functioning in social systems is expressed by means of sensually perceived objects - signs, which can be used as any material objects. Signs intended for the storage and transmission of information are not isolated objects, but are elements of an integral sign system.
As universal remedy Information exchange in social systems is played by language as a sign system that determines the rules for constructing information codes, as well as the choice of physical carriers of these codes, ensuring their existence in time and transmission in space. Texts have the greatest information capacity.
The property of information transformability, i.e., the ability to transmit the same information in different forms, is also associated with the sign-text way of storing and transmitting information used by subjects of public relations.
The transformability of information is ensured, firstly, by the phenomenon of synonymism within the same language, when different combinations of signs - words have the same meaning; secondly, the presence of semantic isomorphism between languages, which makes it possible to translate from one language to another while preserving the information that constitutes the content of the text.
In an interesting way, in social relations, such a property of information as its inexhaustibility is manifested.
The fact is that when information is transferred from one carrier to another, the information may remain on the first carrier. Thus, as a result of using information, its amount does not decrease. Information can have an unlimited number of users and still remain unchanged. Knowledge transferred to the public cannot be destroyed or restricted from further dissemination.
A person who unlawfully withheld or disclosed information in violation of the law or contract can only be held liable for the wrongful act. Depending on the subject and nature of the information offense, the perpetrator may be brought to civil, material, disciplinary, administrative or criminal liability. In the process of illegal actions, the property of vulnerability of information is manifested, which makes it necessary to design legal mechanisms that ensure the protection and protection of the legitimate interests of information owners, information security of a person, society and the state.
The universality of information at the social level is manifested in the variety of spheres and ways of its functioning and use. Information can be information about any phenomena, properties, processes, relationships, etc. Any subject of public relations can be the owner of information. It turns out that information exchange can be carried out within the framework of any social relations. Consequently, the legal regulation of relations regarding information exchange must inevitably be complex, intersectoral in nature.
The quality of the relevance of information is also preserved in social relations, acting as a set of properties that characterize the degree of compliance of information with the needs of the subjects using it, which involves the evaluation of information according to a number of criteria, depending on the type of activity of the subject, with which the use of information is associated, and the goals set by the subject. .
Since in social systems information exchange is carried out between the subjects of public relations, the qualitative characteristics of information, in particular its purposefulness, value, security, etc., are also determined in relation to the subjects of these relations.
The concepts corresponding to these characteristics are of anthropomorphic origin. Through analogy, they are literally transferred from interpersonal contacts to relations with the participation of public entities, and in a figurative sense they are used in relation to information functioning in biological and inanimate systems.
subjectivity social information It is expressed in the fact that it is created, transformed and functions as a result of purposeful activity of subjects.
Being included in the objective activity of the subject, information becomes a social value, which gives rise to a system of its evaluation according to various criteria, depending on the goals of the subjects using it.
It is assumed that the value of information depends on the extent to which it contributes to the successful achievement of the goals of the activity of a particular subject.
The objectivity of information at the social level is expressed in its ability to act as knowledge for the subject, i.e., a special property of the subject in its relation to the knowable. In these cases, for the subject, information is a reflection of certain objects, processes, their properties or relations between them. At the same time, information acting as knowledge is not a property of an object, but a product of the subject's cognitive activity aimed at this object.
The separability of information means that a certain set of information is an independent information object that can be put into circulation, which gives rise to the legal property of information objects to be included in distribution, exchange, sale, etc.
As noted in the literature, information has the ability to process, to integrate and mathematical analysis, communication.
The properties of information are determined by its essential functions: cognitive; managerial; conductor in the system of cause-and-effect relationships.
The study of managerial and cognitive functions of information is carried out within the framework of cybernetics. To form optimal behavior in the environment, the system must constantly adapt to changing external conditions. The processes of collecting and processing information, both external and internal, are aimed at this, as a result of which a dynamic information model is formed in the system, reflecting the characteristics of the external world that are essential for it and its own position in it.
1.5. Information as an economic category and its significance in the modern world
In the history of civilization, cardinal transformations of social relations have repeatedly occurred, associated with changes in the field of storage and processing of information. With the advent of writing, mankind was able to pass on the accumulated knowledge from generation to generation, and printing greatly facilitated this process. The discovery of electricity, the invention of the telegraph, telephone, radio, television, space exploration led to the creation of new means of communication that allow you to quickly exchange information, distribute it throughout the planet and even beyond its borders. The development of microprocessor and nanotechnologies, the widespread introduction of computers contributed to the creation of extensive telecommunication networks that make it possible to receive, store, process and transmit any amount of information.
In the 19th century, English economists proposed including information as part of capital, pointing out that knowledge and organization are powerful engines of production.
The development of information technologies in the conditions of market relations has led to the fact that information has come to be regarded as an economic category, as a commodity that has a use and exchange value (value), can be exchanged for other goods.
From the standpoint of modern economic science, a commodity is an economic good intended for exchange, regardless of its ability to move, regardless of the persons offering it for sale, on its materiality, regardless of its nature as a product of labor.
Possessing use value (cost) as a commodity, information is able to directly satisfy the needs of individuals and serve as a means of producing material goods.
In economic relations, information began to act not only as a product of human labor, but also as an object and means of labor along with other production resources.
As the researchers note, the formation of the information environment is becoming one of the main facts of human life. The process of creating and processing information is becoming a predominant labor, to which in the United States, for example, more than 70% of the able-bodied population is already involved.
In the information society, the measure of physical, mechanical and automated labor is reduced by the most complete knowledge, turning it into a source of value.
Special meaning in industrial and post-industrial society acquired machine information, which is recognized as information recorded on a physical medium in a form that is accessible to perception by means of a computer and circulating through telecommunication channels.
Information as such began to be acquired on a reimbursable basis for entrepreneurial activities, became the subject of commodity-money relations. “Producers” and “consumers” of information appeared in commercial circulation. Formed " information market", which sells and buys "information products" as arrays of accumulated information, specifically designed for consumers.
To define public information wealth, the concept of "information capital" has appeared, used to reflect the monetary costs and benefits associated with the production, storage, processing, transmission and receipt of "information resources" as reserves, sources of information.
At the same time, an attempt to directly apply a monetary equivalent to information does not reveal its true social value and actual market value. The book value of information often only reflects the value of its tangible media or technical means, used for information exchange .
Information is non-linear in nature, that is, the quantitative and qualitative characteristics of information do not depend on each other. Information is associated with a material carrier, and its transmission is associated with energy costs. However, the consequences of sharing information or keeping it secret do not depend on the cost of sharing or maintaining confidentiality.
At the same time, information as a blessing is a means of satisfaction. information needs subjects of public relations, and therefore has economic and social value, can act as an object of property and non-property relations.
1.6. The ability of information to serve as an object of legal relations
§ 2. Information in the system of objects of legal relations
2.1. Legal definition of information
As an object of law, information began to be considered only in the 20th century. In Russian law, information was first named among the independent objects of civil rights in Art. 128 of the Civil Code of the Russian Federation.
The legal definition of information was contained in Art. 2 of the Federal Law of February 20, 1995 No. 24-FZ "On Information, Informatization and Information Protection", according to which information is information about persons, objects, facts, events, phenomena and processes, regardless of the form of their presentation.
The concept of information, which is similar in essence, is proposed in subpara. 1 st. 2 of the Federal Law of July 27, 2006 No. 149-FZ “On Information, Information Technologies and Information Protection”, which states that information is information (messages, data) regardless of the form of their presentation.
The new definition clarifies the term "information" using words that are similar in meaning ("data" - information necessary for the conclusion, decision; "message" - news, notification of someone about something, transmission of information, data; etc.) .
As noted in the literature, information is the content of messages and materials.
TO THE QUESTION OF LEGAL DEFINITION OF INFORMATION RESOURCES
R.V. AMELIN
With the adoption of the Federal Law of July 27, 2006 N 149-FZ "On Information, Information Technologies and Information Protection", the legal definition of information resources (IR) and a number of important norms regulating their legal regime disappeared from the Russian information legislation. Meanwhile, this term is still used in more than a thousand regulations, a significant part of which was adopted after the reform of the information legislation in 2006. Suffice it to mention Decree of the Government of the Russian Federation of September 14, 2012 N 928 "On Basic State Information Resources".
N.N. Kovaleva believes that the return of the concept of "information resource" to the Federal Law will provide the possibility of free use of numerous regulations that mention this category. We do not fully share the author's optimism, since the problem lies precisely in the fact that these numerous normative acts have serious discrepancies regarding what exactly is meant by an information resource. However, the more time passes before the inevitable rehabilitation of this concept, the greater the amount of work to bring the regulatory framework into line will be subsequently.
Previous legislation defined information resources as "separate documents and separate arrays of documents, documents and arrays of documents in information systems (libraries, archives, funds, data banks, other information systems)" .
Most modern authors adhere to this definition with various refinements. As a rule, the term "collection" (information, documents, databases, etc.) is used. For example, I.L. Bachilo proposes to understand information resources as "a distinguished set of knowledge, information and other forms of information presentation, created, acquired or received and used by an authorized entity in its own, public and private interests of other entities in accordance with the legislation, customs, traditions of a particular state and the rules of the international community ".
At the same time, the absence of a legal definition could not help blurring the boundaries of the concept. In some cases, an information resource is identified with information. For example, according to the Model Information Code for the States Members of the Commonwealth of Independent States, information resources are any set of information, including documents, regardless of content, time and place of creation. It happens that information resources include Information Systems. For example, GOST R 27.601-2011 states that "information resources include both manuals and other maintenance documentation, as well as computerized information systems" (clause 7.4.1) . In article 11.2 of the Tax Code of the Russian Federation, " Personal Area taxpayer", which is actually an information system (subsystem), an integral part of which are hardware and software. It should be noted that sites are quite often referred to in the literature as information resources, although, in our opinion, it is important to carefully separate the site as an information system with a web interface and a site as a set of documents (including web pages) hosted in such a system.
But even if we dwell on the understanding of information resources as a set (array) of documented information, which is relatively well-established in the view of the legislator and legal science, the definition will still be inaccurate, since the question remains about the boundaries of this set. Is it possible to consider an arbitrary set of documents as an object of legal relations (for example, stored in a safe, posted on a website, published in the media, etc.)? Is it right to designate the entire set of documented information of state bodies by the term "state information resource"? In which case a set of documents forms a special subject of legal regulation, and does it occur at all? Maybe "information resource" is just a convenient generalizing term, and real legal relations are formed exclusively with regard to separate documented information?
Answers to these questions can be obtained by referring to the concept of the legal regime of an information resource.
Category "legal regime" has repeatedly become the subject of research both in works on the general theory of law and on information law. The discussion about the content of this category is far from over, and without entering into controversy, we will borrow a definition suitable for our purposes. In this work, the legal regime will be understood as a system of legal means, combined into a single structure, aimed at establishing the authority of an indefinite circle of subjects in relation to a specifically defined object.
It should be noted that, despite the absence of the concept of information resources in the legislation, their legal regime is the topic of many modern studies. At the same time, a number of authors in this context classify information resources by accessibility, highlighting the legal regimes of state secrets, trade secrets, personal data, etc. . This classification criterion was indeed reflected in the previous legislation, but, in our opinion, it is more appropriate to talk here about the legal regime of information, which found a deep and systematic justification in the doctoral dissertation of L.K. Tereshchenko. Of course, the legal regime of information included in the information resource has a significant impact on the legal regime of the latter, but far from being exhaustive. In addition, it seems that the information resource may include different categories of information (both secret and non-secret).
With regard to information L.K. Tereshchenko identifies the following elements of the legal regime: purpose; object of legal regulation; legal status of the subjects of the legal regime; complex of methods of legal regulation and means of legal influence .
In the previous Law, the content of the legal regime of information resources was enshrined in Part 2 of Art. 4. It should have been established by a set of rules defining: a) the procedure for documenting information; b) ownership of individual documents and individual arrays of documents, documents and arrays of documents in information systems; c) the category of information according to the level of access to it; d) the procedure for legal protection of information. The third chapter of the Law regulated various aspects of the use of information resources.
Many of the modern studies of the legal regime of information resources borrow the above elements that have lost normativity, but not theoretical recognition. In general, it can be stated that in the legal literature there is a relatively well-established idea of the legal regime of an information resource with different approaches to its detailing. An excellent detail is offered, in our opinion, by T.Z. Shalaev (from the legislation of the Republic of Belarus the concept of an information resource was not excluded, which, apparently, has a positive effect on the development of scientific thought in this area): "in fact, the algorithm for the formation of the legal regime of IR can be represented as a compositional sequence of legal means: the target setting for the formation of IR; order creation and formation of a certain composition of IR, documentation of IR information units for established rules and standards; establishing the category of IR by access; rules and conditions for accounting, registration and management of IR; determination of ownership and/or exclusive rights to IR; conditions for financing and commercialization of R&D; information security requirements for IR; the procedure and conditions for the consumption / sale (provision, distribution, use) of IR; legal protection and protection of IR".
Our fundamental position on the issue of the boundaries of the totality of documented information is that the composition of an information resource cannot be determined arbitrarily. As a subject of legal regulation and as a systemic formation, an information resource should have the property integrity, and this property can only be enforced by setting it legal regime. Moreover, in the absence of a legal regime that implies normative fixing of the elements listed above, it is unlawful to talk about an information resource as a special object of legal relations. There is no need to create new terminological entities if there is ordinary information (documented information) behind them.
It may seem that we are unnecessarily narrowing the boundaries of a concept that is used in many completely different contexts. For example, they talk about the information resource of a particular user (owner), information resources of an organization, national information resources, etc. But in these cases, the term is used rather in a domestic sense and does not carry a legal load that would not be covered by the content of the terms "information" or "documented information". At the same time, the totality of information that is formed, processed and used in accordance with some formally approved procedure objectively needs to be considered as a special object of legal relations, and the term "information resource" for its designation seems quite natural and consistent with the traditions of Russian legislation.
Our position is reflected in the following conclusions.
1. An information resource should be understood as a set of documented information, in respect of which a law or other regulatory acts establishes a regime that includes the grounds and procedure for including information in the information resource, as well as the procedure and conditions for its use (provision, distribution).
2. The property of integrity is constitutive for an information resource and means the inadmissibility of an arbitrary expansion or narrowing of the boundaries of an information resource. This does not mean the inclusion (exclusion) of documented information in the IR, but a change in the criteria according to which information can (should) be included in its composition.
3. Integrity is of particular importance for state information resources. Based on the above definition, a significant number of such IRs should be stated, despite the absence of a legal definition. First of all, we are talking about state registries and information that is part of state information systems. The structure of the state information resource should include only the information that is due to the purpose of its creation, and only in the manner prescribed by law. Any expansion of the composition of information or the grounds for their inclusion in the IR must be carried out on the basis of the law. Some of the reasons why integrity is especially important for public R&D include:
1) budget costs for the formation of state information resources;
2) to ensure the reliability of IR, a thoughtful approach to the included information and its sources is needed;
3) "extra information"harmful for solving the problems of public administration, as convincingly shown, in particular, G.V. Atamanchuk;
4) information included in the information resource in the prescribed manner may acquire special legal significance depending on the purpose of the information resource;
5) the rights of citizens may be affected and legal entities, information about which is included in the information resource.
Note that integrity as a constitutive feature is also relevant for such an object of legal relations as a database (DB). This is rightly pointed out by O.A. Korchemkina: "A database is a single holistic set of information elements formed by means of logical and semantic connections between them. The feature under consideration is one of the fundamental characteristics of a database, since it allows you to distinguish a database from a simple compilation - a set of unsystematized materials" . However, the criteria and means of ensuring the integrity of the database and IR will differ. Logical and semantic connections are necessary, first of all, for searching and processing database information elements using special software and technological tools. Thus, the integrity of the database is a sign that is in the technical dimension, while the integrity of the information resource is completely in the legal dimension.
Based on the foregoing, the following reforms of the Russian information legislation seem to be urgent and relevant.
1. The return of the concept of an information resource as a set of documented information, in respect of which their regime is established by law or other regulatory acts.
2. Establishment of legislative requirements for the legal regime of the information resource (list of issues subject to mandatory regulation).
3. Establishment of special legislative requirements for the legal regime of state information resources.
The legal definition of an information resource constructed in this work can be used in the study of the legal regime of state information systems and the legal nature of the state register.
Literature
1. Kovaleva N.N. Administrative and legal regulation of the use of information technologies in public administration: Dis. ... doc. legal Sciences. Saratov, 2013.
2. Federal Law of February 20, 1995 N 24-FZ "On Information, Informatization and Information Protection" (repealed) // SZ RF. 1995. N 8. Art. 609.
3. Bachilo I.L. Information Law: A Textbook (third edition). Moscow: Yurayt, 2013.
4. Model Information Code for the CIS Member States: adopted in St. Petersburg on November 23, 2012 by Resolution 38-6 at the 38th plenary meeting of the Interparliamentary Assembly of the CIS Member States // Information Bulletin. Interparliamentary Assembly of States - Members of the Commonwealth of Independent States. 2013. N 57 (part 1). pp. 44 - 73.
5. GOST R 27.601-2011. National standard of the Russian Federation "Reliability in engineering. Reliability management. Maintenance and its support": approved. and put into effect by the Order of Rosstandart dated September 29, 2011 N 415-st.
6. Tishin A.P. Personal account on the website of the Federal Tax Service // Tax audit. 2015. N 3. S. 22 - 32.
7. Kucherenko A.V. On the legal status of a blogger // Information Law. 2015. N 1. S. 27 - 31.
8. Lazarev S.V. Directions for the development of information and communication technologies in Russia // Arbitration and civil process. 2014. N 8. S. 41 - 45.
9. Teleshina N.N. Implementation of e-justice in Russia (on the example of the Arbitration Court of the Vladimir Region) // Arbitration and Civil Process. 2014. N 6. S. 44 - 50.
10. Akopov G.L. Information law: Tutorial. Rostov n/a: Phoenix, 2008.
11. Soldatkina O.L. Information resources of the Russian legal policy: general theoretical aspect: Abstract of the thesis. dis. ... cand. legal Sciences. Saratov, 2010.
12. Starchenko A.Yu. Information resources of executive authorities: problems of defining the concept // Historical, philosophical, political and legal sciences, cultural studies and art history. Questions of theory and practice: At 2 o'clock. Tambov: Diploma, 2013. N 9 (35). Part II. pp. 183 - 186.
13. Kovaleva N.N. Public authorities as subjects of management in the information sphere // Information law. 2013. N 2. S. 8 - 9.
14. Alekseev S.S. General Permissions and General Prohibitions in Soviet Law / Ed. L.A. Plekhanov. M.: Legal literature, 1989.
15. Isakov V.B. The mechanism of legal regulation // Problems of the theory of state and law: Textbook / Ed. S.S. Alekseev. M.: Legal literature, 1987.
16. Malko A.V., Rodionov O.S. Legal regimes in Russian legislation // Journal of Russian law. 2001. N 9. S. 19 - 25.
17. Shalaeva T.Z. Legal Regime of Information Resources: Problems of Law Understanding // Information Law. 2014. N 4. S. 4 - 9.
18. Kulikova S.A. Information Law of Russia: Textbook for students studying in the specialties (directions) "Jurisprudence" and "Applied Informatics in Jurisprudence". Saratov: Publishing House of Saratov University, 2010.
19. Tereshchenko L.K. Legal regime of information: Dis. ... doc. legal Sciences. M., 2013.
20. Soldatkina O.L. Information Resources of Russian Legal Policy / Ed. A.V. Malko. Moscow: Yurlitinform, 2013.
21. Actual problems of information law / Ed. I.L. Bachilo, M.A. Lapina. M.: Justice, 2016.
22. Atamanchuk G.V. Theory of public administration. Moscow: Omega-L, 2004.
23. Amelin R.V. Entering deliberately false information into the unified state registers: the subject of the crime // Criminal Law. 2015. N 1. S. 4 - 8.
24. Korchemkina O.A. The concept and features of a database as an object of law // Russian legal journal. 2012. N 1. S. 120 - 124.
References
1. Kovaleva N.N. Administrativno-pravovoe regulirovanie ispolzovaniya informatsionnyih tehnologiy v gosudarstvennom upravlenii. Doctoral Dissertation in Law. Saratov, 2013.
3. Bachilo I.L. Informatsionnoe pravo: Uchebnik. Moscow: Yurayt, 2013.
6.Tishin A.P. Lichnyiy kabinet na sayte FNS // Tax audit. 2015. N 3. P. 22 - 32.
7. Kucherenko A.V. O pravovom statuse blogera // Informatsionnoe pravo - information law. 2015. N 1. P. 27 - 31.
8. Lazarev S.V. Napravleniya razvitiya informatsionno-kommunikatsionnyih tehnologiy v Rossii // Arbitrazhnyiy i grazhdanskiy protsess - Arbitration and civil procedure. 2014. N 8. P. 41 - 45.
9. Teleshina N.N. Realizatsiya elektronnogo pravosudiya v Rossii (na primere Arbitrazhnogo suda Vladimirskoy oblasti) // Arbitrazhnyiy i grazhdanskiy protsess - Arbitration and civil procedure. 2014. N 6. P. 44 - 50.
10. Akopov G.L. Informatsionnoe pravo: Uchebnoe posobie. Rostov-on-Don, Phoenix, 2008.
11. Soldatkina O.L. Informatsionnyie resursyi rossiyskoy pravovoy politiki: obscheteoreticheskiy aspekt. PhD Thesis. Saratov, 2010.
12. Starchenko A. Yu. Informatsionnyie resursyi organov ispolnitelnoy vlasti: problemyi opredeleniya ponyatiya. Tambov and Gramota, 2013. No. 35. Path II. P. 183 - 186.
13. Kovaleva N.N. Organyi publichnoy vlasti kak sub "ektyi upravleniya v informatsionnoy sfere // Informatsionnoe pravo - Information law. 2013. N 2. P. 8 - 9.
14. Alekseev S.S. Obschie dozvoleniya i obschie zapretyi v sovetskom prave. Moscow: Yuridicheskaya literatura, 1989.
15. Isakov V.B. Mehanizm pravovogo regulirovaniya i pravovyie rezhimyi. Problemyi teorii gosudarstva i prava - Problems of the theory of state and law. Moscow: Yuridicheskaya literatura, 1987.
16. Malko A.V., Rodionov O.S. Pravovyie rezhimyi v rossiyskom zakonodatelstve // Zhurnal rossijskogo prava - Journal of Russian law. 2001. N 9. P. 19 - 25.
17. Shalaeva T.Z. Pravovoy rezhim informatsionnyih resursov: problemyi pravoponimaniya // Informatsionnoe pravo - Information law. 2014. N 4. P. 4 - 9.
18. Kulikova S.A. Informatsionnoe pravo Rossii. Saratov: SGU, 2010.
19. Tereschenko L.K. Pravovoy regime informatsii. Doctoral Dissertation in Law. Moscow, 2013.
20. Soldatkina O.L. Informatsionnyie resursyi rossiyskoy pravovoy politiki. Moscow: Yurlitinform, 2013.
21. Aktual "nye problemy informacionnogo prava. Moscow: JUSTICE, 2016.
22. Atamanchuk G.V. Teoriya gosudarstvennogo upravleniya. Moscow: Omega-L, 2004.
23. Amelin R.V. Vnesenie v edinyie gosudarstvennyie reestryi zavedomo nedostovernyih svedeniy: predmet prestupleniya // Ugolovnoe pravo - Crime law. 2015. N 1. P. 4 - 8.
24. Korchemkina O.A. Ponyatie i priznaki bazy dannyh kak obekta prava // Rossijskij yuridicheskij zhurnal - Russian Law Journal. 2012. N 1. P. 120 - 124.
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§2. Information in the system of objects of legal relations
2.1. Legal definition of information
As an object of law, information began to be considered only in the 20th century. In Russian law, information was first named among the independent objects of civil rights in Art. 128 of the Civil Code of the Russian Federation.
The legal definition of information was contained in Art. 2 of the Federal Law of February 20, 1995 N 24-FZ "On Information, Informatization and Information Protection" * (227), according to which information is information about persons, objects, facts, events, phenomena and processes, regardless of the form of their presentation.
The concept of information, which is similar in essence, is proposed in subpara. 1 st. 2 of the Federal Law of July 27, 2006 N 149-FZ "On Information, Information Technologies and Information Protection", which states that information is information (messages, data) regardless of the form of their presentation.
The new definition clarifies the term "information" using words that are close in meaning ("data" - information necessary for the conclusion, decision; "message" - news, notification of someone about something * (228), transfer of information, data; and etc.).
As noted in the literature, information is the content of messages and materials * (229) .
The legislative definition of information as "information" (messages, data) indicates the subjective and subjective nature of information.
Disclosing the approximate content of information through the categories "persons", "objects", "facts", "events", "phenomena and processes", the legislator emphasizes its objectivity and universal character.
An indication of the independence of information from the form of its presentation testifies to the substantial lack of independence, continuity, transformability and inexhaustibility of information.
The property of the relevance of information is emphasized by the norm of paragraph 3 of Art. 6 of the Law on Information, according to which the owner of information, unless otherwise provided by federal laws, has the right to use the information, including disseminating it, at his own discretion; transfer information to other persons under an agreement or on another basis established by law; and etc.
The concept of "mass information" was given in Part 3 of Art. 2 of the Federal Law of July 4, 1996 N 85-FZ "On participation in international information exchange" * (230) .
According to part 2 of Art. 1 of the Law of the Russian Federation of December 27, 1991 N 2124-1 "On the Mass Media" * (231) mass information is printed, audio messages and audiovisual and other messages and materials intended for an indefinite circle of persons.
The legislator refers to computer information as information on a computer carrier, in an electronic computer (ECM), a computer system or their network (Part 1, Article 272 of the Criminal Code of the Russian Federation).
2.2. Correlation of the category of information with the concepts of "information
resources (products, services)"
Since information cannot exist outside of a material carrier, many experts believe that only "information resources", "information systems", "information technologies and means of their support", and not information as such * (232) can be the object of legal regulation.
The Law on Information, Information Technologies and Information Protection defines an "information system" as a combination of information contained in databases and information technologies and technical means that ensure its processing (clause 3, article 2). "Information technologies" refers to processes, methods of searching, collecting, storing, processing, providing, disseminating information and methods for implementing such processes and methods (clause 2, article 2). State information resources mean information contained in state information systems, as well as other information and documents at the disposal of state bodies (clause 9, article 14).
According to paragraph 1 of Art. 2 of the Law of the City of Moscow of October 24, 2001 N 52 "On Information Resources and Information of the City of Moscow" * (233), information resources of the City of Moscow are information (regardless of the method of its presentation, storage or organization) contained in information systems and attributable in accordance with this Law to the property of the city of Moscow.
Meanwhile, the analysis of information relations and the current legislation governing these relations shows that the concepts of "information resources", "information technologies", "information systems" do not coincide with the concept of information precisely in the sense of an object of law. Information recorded on a material carrier (document, etc.) is included in information resources, can be provided at the request of specific subjects in the form of oral or written messages; can be distributed among an unlimited circle of persons; can be protected from illegal access, including by prohibiting its disclosure; and etc.
Thus, the object of legal regulation is the behavior of participants in information relations, not only in relation to information resources, but also in relation to the information itself.
Researchers often emphasize that information in itself cannot serve as an object of property rights. In property turnover, only information that is a product of human activity, meaningful and clothed in a material form, can act as the subject of transactions. Such subjects can serve as information objects, which are "information products" and "information services * (234) ".
In accordance with the provisions of h. 5 Article. 2 of the Law on International Information Exchange of information product (product) recognized documented information prepared in accordance with the needs of users and intended or used to meet the needs of users.
Information services were considered the actions of subjects (owners and owners) to provide users with information products (part 6 of article 2 of the Law on International Information Exchange).
As S.A. Chekhov, in economic circulation, information appears in the form of an information product or information service. An information product is information provided to meet the specific information needs of consumers and the circulation of which is not prohibited by applicable law. Information services are services for the search, collection and processing of information, the circulation of which is not prohibited by applicable law, as well as services for providing consumers with access to it * (235) .
According to Art. 8 of the Law of the City of Moscow "On Information Resources and Information of the City of Moscow", information resources of the City of Moscow are included in the economic turnover by providing information services on their basis.
Suggestions were made for the need to add Civil Code Russian Federation with a special article that would establish the legal regime of an information product, which is documented information in any material form, prepared in accordance with the needs of users and intended or used to meet the needs of users. It is proposed to recognize as information products "information products specially manufactured for the mass provision of the needs of legal entities and individuals" * (236) .
Indeed, the object of civil rights and civil law transactions that mediate information exchange is the secret of production (know-how) * (237), as well as other information that is a product of human labor and is dressed in a form accessible to perception by the subject.
Perhaps for this reason, from January 1, 2008, information as such was excluded from the list of independent objects of civil rights provided for in Art. 128 of the Civil Code of the Russian Federation * (238) .
At the same time, the analysis of philosophical and legal definitions of information, the study of social relations in which information as a legal phenomenon is involved, allow us to make an unambiguous conclusion that the concept of information as an object of law is not limited to information products or information services created as a result of human labor.
The acquisition of an ordered information product or information service within the framework of property legal relations implies precisely the receipt of specific information to eliminate some uncertainty or the dissemination of information in accordance with the goals of the recipient (buyer, customer of information), primarily on the basis of civil law and business contracts.
It seems that information should be recognized as an independent legal phenomenon that has specific features and properties, but can be considered as a special object of legal relations.
The norm of paragraph 1 of Art. 5 of the Law on Information, Information Technologies and Information Protection expressly states that information may be an object of public, civil and other legal relations.
In our opinion, this provision is theoretically substantiated and correct from the point of view of practice. It seems that the object of civil, labor, administrative, criminal and other legal relations is not only information products or information services, but also the information itself, including that which has a trade secret regime, etc.
Information can act either as an independent object (production secret), or as an element accompanying another object of rights or activities of subjects (transfer of information about a product as part of the fulfillment of purchase and sale obligations, etc.).
