New Rules and Procedures for Blocking Mobile Apps Distributing Pirated Content10 July 2020
Various issues relating to information and data workflows in Russia, such as access to content, liability of information market stakeholders and some enforcement issues, are governed by Federal law 27 July 2006 (N 149-FZ) on information, information technologies and information protection (Information Law). In most cases, the regulator under the Information Law is the Federal Service for Supervision in the Sphere of Telecoms, Information Technologies and Mass Communications (Roskomnadzor). At present, Roskomnadzor is actively monitoring compliance with the Information Law, especially when its legal provisions overlap with IP protection legislation. On 8 June 2020 the Russian president signed into law the amendments to the Information Law aimed at fighting the use of mobile apps as a platform to distribute pirated content which infringe copyright and related rights. The amendments are introduced by the Federal Law of 8 June 2020, 177-FZ "On amending the Federal Law on information, information technologies and information protection" and will become effective starting from October 01, 2020.
This article examines the upcoming amendments and highlights the new enforcement possibilities that will be available to copyright holders in Russia. The changes will also be relevant for businesses that own and operate mobile apps, which should take into account the new provisions and the associated risks if their mobile apps contain pirated content.
Anti-piracy options and reasons behind new amendments
The Information Law was substantially amended in 2013 and 2015 to allow copyright and related rights holders to use the fast-track enforcement mechanism for the unauthorised distribution of content via 'information resources' (typically understood as websites). In the case of a website hosting pirated content, rights holders could file a takedown notice to the website or domain name owners or use a specific court procedure to obtain a preliminary injunction in the Moscow City Court to restrict access to the infringing website. This anti-piracy mechanism, being relatively swift compared with normal court procedure, resulted in positive trends in copyright enforcement against online infringers and developed favourable practice for IP owners.
New amendments to the Information Law were introduced in December 2018 to enhance the existing anti-piracy mechanism in Russia.
The explanatory note to the draft law addressed the issue of complications which may arise in the interpretation of what constitutes an 'information resource' in cases where infringing content is distributed via software applications. In this regard, the introduction defines 'software application' and 'mobile application owner' as part of a clear and efficient anti-piracy enforcement mechanism. The proposal was eventually approved and implemented.
The recent amendments to the Information Law have undergone several rounds of discussion and the final version has now been approved and will come into effect on 1 October 2020.
New amendments and enforcement procedures
To foster anti-piracy enforcement, the amendments to the Information Law introduce the following definitions:
- A 'software application' is defined as:
[a] computer program, which provides access to information and telecommunication networks, including the Internet, to subject matters of copyright and (or) related rights (except for photographic works and works obtained by methods similar to photography), or to information necessary to obtain those by using information and telecommunication networks.
- A 'mobile application owner' is defined as "a person who independently and at its own discretion determines the procedure for the use of the software application".
The new enforcement mechanism works as follows:
- Where infringing content is distributed through the use of a software application, the IP owner may approach Roskomnadzor on the basis of an effective court decision and motion to restrict access to the specific mobile app in Russia.
- Having received the motion from the IP owner, Roskomnadzor will file a request to the e-platform where the mobile app is available to demand that access to the infringing content be restricted.
- Within one day of such a request, the e-platform must notify the mobile app owner of the need to restrict access to the infringing content.
- The mobile app owner has one day to react to the notification from the e-platform and restrict access to the infringing content.
- If the mobile app owner fails or refuses to act, the e-platform has three days to restrict access to the app through which the infringing content is disseminated.
- If the e-platform or mobile app owner fail to act, Roskomndazor may also seek to block the mobile app via the relevant telecoms operator, which must comply with such a request within 24 hours.
Hosting providers will also be engaged in the above procedure. Within one day from the receipt of notice from the hosting provider to delete unauthorised information distributed online, the owner of the information resource must delete such information. If the hosting provider refuses or fails to act, it must restrict access to the relevant information resource 24 hours following receipt of the infringement notice.
The amendments to the Information Law may be interpreted as a further step in the fight against copyright and related rights infringements in Russia. They will undoubtedly increase the level and quality of IP enforcement (anti-piracy) activities as well as aid discipline and legitimacy in the evolving area of mobile app distribution. IP owners should try to use all of the benefits and remedies available under the new amendments. At the same time, mobile app developers and owners should create and adapt their operations to avoid negative consequences (eg, blockages) which may arise if they are found to host or distribute illegal content.