Russian Anti-Piracy Law

It is very pleasant to state that the Russian IP legislation has recently undergone quite a number of considerable amendments and modifications that are indicative of development of this field in the national civil-law system. One of the most resonant legislative acts in this particular legal domain that took effect in the year of 2013 was the so-called «Anti-Piracy Law». Federal Law No. 187-FZ «On Amendments to Certain Legislative Acts of the Russian Federation Concerning Protection of Intellectual Property Rights in Information and Telecommunication Networks» dated July 2, 2013 (hereinafter referred to as the «Anti-Piracy Law/Law») regulates a procedure for blocking the information (online) resources due to distribution of illegal video content on the Internet. The Law has become effective since August 1, 2013, and during the year of its application it has demonstrated high efficiency of the copyright protection mechanism in the digital environment.

After the Anti-Piracy Law has been enacted, certain amendments have been added to the Federal Law No. 149-FZ «On Information, Information Technologies, and Protection of Information» dated July 26, 2006 (hereinafter referred to as the «Information Law»), the Civil Procedure Code of the Russian Federation (hereinafter referred to as the «RF Civil Procedure Code»), the Arbitrazh Procedure Code of the Russian Federation, as well as the Civil Code of the Russian Federation (hereinafter referred to as the «RF Civil Code»).

It is important to note here that the Anti-Piracy Law is currently applicable to enforcement of the exclusive rights to movies, including motion pictures and TV films, in various information and telecommunication networks, including the Internet.

Liability of Information Intermediaries

The Anti-Piracy Law defines a range of entities (the so-called «information intermediaries») which, along with the valid infringers, may also be found liable for distribution of illegal content on the Internet in case they are guilty. Such intermediaries include the following persons: (1) persons that transmit the data in the information and telecommunication network (Internet Service Providers); (2) persons that offer access to the placement of materials or information requisite to obtain the same using the information and telecommunication network (web-site owners or web-site administrators); and (3) persons that provide access to materials in the information and telecommunication network (Internet Hosting Providers).

The Law has also established the terms under which the afore-mentioned entities may be exempt from liability. In particular, the Internet Service Provider shall not be liable for IP infringement if the following conditions are duly complied with: (1) person does not initiate the transmission of materials and does not select the recipient of the said materials; (2) person does not modify the said materials when rendering the communication services, except for modifications performed to maintain the technology process for transmittal of materials; (3) person was not and should not have been aware of the fact that the use of a product of intellectual activities by the person which initiated the transmission of materials containing the corresponding product of intellectual activities is unlawful. The web-site owner or web-site administrator shall not be liable for IP infringement that took place due to third party’s placement of materials in the information/telecommunication network if the following conditions are duly complied with: (1) person was not and should not have been aware of the fact that the use of the corresponding product of intellectual activities contained in such materials is unlawful; (2) upon the receipt from the rights holder of a written notice warning of IP infringement, in which notice a web-page and (or) a network address where such materials have been placed is specified, the owner or administrator has undertaken necessary and sufficient measures to cease the subject IP infringement (the list of necessary and sufficient measures as well as the procedure of their application has not been established by the law and is a matter of fact). Internet Hosting Provider may be exempt from liability for IP infringement if all of the above-mentioned conditions applicable to the Internet Service Provider and web-site owner/administrator are concurrently complied with.

It should be highlighted that the claims for enforcement of IP rights not involving general civil liability, which include removal of infringing content or restriction of access to such content, may still be applied against innocent information intermediaries.

Mechanism of Enforcement of IP Rights

A lot of complicated issues to enforce copyrights in the judicial manner had been encountered before the Anti-Piracy Law was enacted in Russia. Disputes used to be considered in accordance with the general procedural rules on jurisdiction, i.e. at the defendant’s location, which was counter-productive to establish a unified law enforcement practice in this area, including in conjunction with the application of injunctions. Thus, for the purposes of infringements to be deterred efficiently, the Anti-Piracy Law determined that this particular category of disputes should be within the jurisdiction of the Moscow City Court (hereinafter referred to as the «Moscow City Court/Court»). At present, having found an unlawfully distributed movie on the information (online) resource, or a web-link for downloading, the rights holder (no matter whether it is a physical or legal entity) is entitled to file a motion for preliminary injunctive relief for enforcement of IP rights (before filing a statement of claims) with the Moscow City Court. In so doing, both the rights holder and her exclusive licensee may seek protection of IP rights (article 1254 of the RF Civil Code). According to article 144.1 of the RF Civil Procedure Code, the Moscow City Court may, upon a written request of the rights holder or the exclusive licensee, adopt the preliminary injunctive relief, before the statement of claims has been lodged, aimed at protection of the infringed exclusive rights to a movie on the Internet. The request for preliminary injunctive relief can be filed with the Moscow City Court by completing a special online form available on the official web-site of the Court and can be signed by a qualified electronic signature as established by the law.

When filing the request for preliminary injunctive relief, the claimant shall provide the Court with the documents supporting the fact of usage of the copyrighted object on the Internet and confirming the exclusive rights of the claimant to this object. Such documents may be submitted with the Court in the electronic form. Failure to submit these documents with the Court may result in the dismissal of the preliminary injunctive relief for protection of exclusive rights to the movie at issue.

In its ruling on preliminary injunctive relief the Court shall establish a term (not exceeding fifteen days) for filing a statement of claims in respect of which the Court has adopted measures on enforcement of proprietary (exclusive) rights of the claimant. The above-mentioned ruling shall be published on the official web-site of the Moscow City Court no later than the day following the date of the ruling. Attention should be paid to the fact that if the claimant does not file the statement of claims within the prescribed term the Court shall cancel the preliminary injunctive relief. Basing on the ruling on the preliminary injunctive relief, the Court shall issue a writ of execution and pass it on to the rights holder or her exclusive licensee (claimant) or, upon the claimant’s petition, shall forward the writ of execution to Roskomnadzor (national communications regulator).

Procedure for Blocking Illegal Video Content

Having obtained the writ of execution the rights holder may address Roskomnadzor with a request for adoption of measures on the restriction of access to the information (online) resource distributing the illegal video content. The form of such request is available on the official web-site of Roskomnadzor. Roskomnadzor shall, within three business days, determine a corresponding information intermediary and send her an electronic notice of infringement of the exclusive rights to the movie at issue. The notice shall be in Russian and English and shall contain all necessary details and the appropriate demand to take necessary steps to remove such illegal content. Within one business day from the receipt of the afore-mentioned notice, the Internet Hosting Provider (or another information intermediary) shall inform the owner of the information (online) resource, which they service, of this notice and notify the owner of the necessity to immediately remove the illegal content and (or) make certain arrangements to restrict the access to such information. Within one business day from the receipt of such notice the owner of the information (online) resource is obliged to remove the corresponding content. In the event of the owner’s refusal to do so, or the owner’s omission, the information intermediary shall restrict the access to the information (online) resource in question within three business days. If the information intermediary fails to apply relevant measures, the Internet Service Provider shall, upon the authorization of Roskomnadzor, restrict the access to the information (online) resource within a day from the receipt (via an internal interaction system) of the relevant details of the information (online) resource from Roskomnadzor.

Court Practice

According to the data available on the official web-site of the Moscow City Court, the court has issued 77 rulings (as of July 31, 2014) for preliminary injunctive relief for protection of exclusive rights to movies during the year of operation of the Anti-Piracy Law. Further, 40 court decisions on cases of such categories have already been published (as of July 31, 2014) on the official web-site of the Court. The analysis of these court decisions allows us to conclude that the practice in the field of enforcement of exclusive rights to movies, subject to the procedure stipulated by the Anti-Piracy Law, tends to develop rather positively (i.e. in favor of rights holders and exclusive licensees).

Before the Anti-Piracy Law came into force, the court practice related to the liability of information intermediaries could not be regarded as unified in Russia. In most cases, the higher courts tended to adhere to the position according to which the liability for IP infringement should be borne by the person that actually placed the illegal content on the Internet. Noteworthy, the national courts did not find Internet Service Providers and Internet Hosting Providers guilty in such cases (with a few exceptions). For example, the Supreme Commercial Court of the Russian Federation stated in its ruling in the «Masterhost» case that «a provider should not be liable for the transmitted data if it did not initiate the transmission of the same, did not select a recipient of such data, and did not influence upon the integrity of the transmitted data». The court also highlighted in this case that «preventive actions to deter violations involving services rendered by service providers, which were envisaged by contracts the service providers had signed with their clients, must be taken into consideration».

This holding was later supported by the Supreme Commercial Court of the Russian Federation that specified in its ruling concerning the «Agava-soft» case that the courts should check the following: whether the provider had derived any profits from activities associated with the use of IP of other persons performed by persons that used the services of this provider; whether the provider had established restrictions with respect to a volume of content to be placed, its availability for an indefinite range of users; whether the user agreement provided for the user’s obligation to observe the legislation of the Russian Federation when placing the content as well as for the unconditional right of the provider to remove the illegal content; the absence of technical conditions (software) that were conductive to IP infringement; and the existence of specific efficient software that would allow preventing, tracking or removing of the counterfeit works that had been placed. The court also held that the courts should assess the provider’s actions concerning the removal, blocking of conflicting content or the infringer’s access to the web-site in question only after the provider had become aware of the fact the her Internet resource was used in violation of exclusive rights of other persons.

In the reputable «Mail.ru» case, the court ordered that, prior to being sued, the defendant had been unaware of the location of the plaintiff’s copyrighted work on the web-site. The court ruled that the plaintiff had not sent the defendant a written notice requesting for the removal of illegal content; after the work in question had been found at the address indicated in the report of the notary public the work was removed from the web-site. The court also noted that the defendant had not performed any unlawful actions against the work; the work had been uploaded solely by the users, and the defendant had neither initiated their uploading nor influenced upon the integrity and content of the uploaded work. Liability of third parties (information intermediaries) was not regulated by the law at that moment.

As far as another hot «Vkontakte» case is concerned, the court refused to refer the case to the Presidium of the Supreme Commercial Court of the Russian Federation in exercising of its supervisory power and stated that a large inventory of technical capabilities, the volume, format and criteria of which were determined by the defendant being the owner of this resource, leaded to a conclusion that it was the defendant that could be regarded as the person which had been, up to a certain extent, found guilty for using and distributing the information on its web-site, including by way of placement of sound records of musical works, without consent of rights holders. The court held that even after the defendant had received the plaintiffs’ claims concerning the illegal use of the disputable musical works, the defendant did not take any efficient steps to deter and obviate consequences related to relevant IP infringements. Under such circumstances, the court ruled that «the defendant’s behavior after the receipt of the plaintiffs’ notification of IP infringements was passive» and finally acknowledged the defendant’s guilt. As a result, the plaintiffs’ claims were [partially] satisfied thereafter in this case.

Comment

Summarizing the above, it should be mentioned that the practice in the area of enforcement of IP rights in the digital environment had been significantly extended after the year of successful operation of the Anti-Piracy Law, regardless of negative opinions and critics from the side of the Internet industry. This fact, in its turn, had set the grounds for introducing several amendments to the Anti-Piracy Law so as to expand its application onto the various copyright objects, including the literary and musical works, software and databases and other works, excluding photographs. As soon as these amendments enter into force, the practice for enforcement of copyrights in the Internet sphere will assume a new, contemporary format in Russia. The amended legislation will enable copyright owners to take advantage of additional legal tools to actively combat the Internet piracy by bringing to liability not only the owners of online resources but also the Internet Service Providers as well the Internet Hosting Providers.

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6. Decision of the Presidium of the Supreme Commercial Court of the Russian Federation No 10962/08 of December 23, 2008
7. Decision of the Presidium of the Supreme Commercial Court of the Russian Federation No 6672/11 of November 1, 2011 (in re No А40-75669/08-110-609)
8. Decision of the 9th Commercial Court of Appeals No 09АП-17019/2012-ГК of July 23, 2012 (in re No А40-90178/10-26-777)
9. Decision of the Supreme Commercial Court of the Russian Federation No ВАС-13900/12 of November 7, 2012
10. www.asozd2.duma.gov.ru/main.nsf/%28Spravka%29?OpenAgent& RN=458668–6