Russia has just amended its Penal Code increasing sanctions for copyright infringement. However, this is not the last change Russia is going to make in its system of Copyright and related rights (hereafter Copyright) protection. Draft amendments to the Copyright and related rights Act of Russia have been recently introduced to Duma. This note aims to briefly discuss the most significant changes that are going to be brought about if the draft is adopted in its current version.
The draft intends to make existing laws of Russia comply with International legal norms in the field of Copyright. In particular the Explanatory note states that the draft will bring current law in accordance with the TRIPS Agreement, WIPO Copyright Treaty 1996 (WCT), WIPO Performances and Phonograms Treaty 1996 (WPPT) and both collectively "WIPO Internet Treaties", EC Copyright Directive 2001.
Making available right.
The draft introduces several notions previously unknown in Russia. For instance, it grants copyright holders "making available" right that is distinguished from traditional "communication to the public". The former was deemed to encompass transmission of a work of the Internet incorporating WCT and WPPT provisions while the latter very often meant transmission by cable or wires. WIPO Internet treaties were the first international legal instruments that addressed digital challenges. Although Russia is not yet a contracting state of these conventions the steps in that direction are certainly laudable.
Extension of copyright protection
The term of copyright is going to be extended from 50 to 70 years after the death of the author. European and US legislation have already prolonged duration of copyright up to 70 years. EC Directive 1993 and the Sony Bono Act 1998 granted longer protection to copyright subject matters even though there is no international treaty that goes so far. Therefore Russia does not have any international obligations to extend the term for copyright protection. One has to mention that this approach is rather controversial and in the United States Sony Bono Act will be challenged before the Supreme Court as unconstitutional. Since the extension of duration prevents the works from coming into the public domain thus impeding "the progress of science and useful arts" it can be considered as being contrary to the Constitutional provisions.
Protection of technological measures and rights management information.
The draft also touches upon two other novels that were first introduced by WIPO in the above mentioned Treaties: technological measures protecting copyright and related rights and rights management information.
Technological measures are defined by the draft makes as "technological measures and their components that are used by right holders in connection with the exercise of their rights and that restrict acts which are not authorised by the right holders or permitted by Law". Apparently such phrasing of the provision indicates that even legitimate actions expressly permitted by Law (fair use or fair dealing) can be fully denied by the right holders by using technological measures. There is a risk that traditional non-infringing uses will suffer from this stance. The proposal outlaws both the act of circumvention of technological measure and manufacture and trafficking in devices primarily designed for the use in circumvention. Anti-circumvention devices are defined in a broad way that encompasses virtually everything that can be applied for bypassing anti-copying or other similar devices. All types of liability can be applied to the persons responsible for "anti-circumvention" violation. Interestingly, copyright violation is not a prerequisite for anti-circumvention liability. In other words one can be hold liable for illegitimate circumvention even in the absence of copyright infringement. Thus the draft makers fully repeat the approach taken by their American counterparts in the DMCA. However, unlike the DMCA the proposal fails to establish any exceptions for legitimate circumvention such as encryption research and reverse engineering. Obviously this standpoint is unacceptable and alterations to the draft in that respect should be made in the near future.
Rights management information has been defined by the WCT as information which identifies the work, the author of the work, the owner of any right in the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or appears in connection with the communication of a work to the public. The draft misses the important point in its own definition of rights management information, namely, the information about the terms and conditions of the use of the work. Thus, license agreements that are by all means significant to any on-line business model nowadays are not going to be protected by this provision. This attitude is inconsistent with the WCT and the WPPT norms.
Liability for intermediaries.
The draft also introduces special provisions concerning persons "whose services may be used for copyright infringement". Such persons are not defined but one can easily foresee that Internet service providers will be seriously affected by this rule. Intermediaries shall immediately stop infringing activities if they receive information of the infringement from Collective rights management society. Such person is not liable for any loss caused to an infringer or any third party if he acted on the basis of information received from Collective Rights Management Societies. The draft fails to address the situation where the information about copyright violation was false. It is unclear who should recover damages to an alleged infringer if the notice was wrong. Besides, it does not provide a supposed infringer with an opportunity to send a counter notification to an intermediary.
One has to recognise while some changes to the current copyright system of Russia are needed there should be balance between various interests. The draft as it stands now fails to accommodate this balance and ignores important concerns of several stakeholders such as legitimate users of copyrighted works, software developers and researchers. Moreover, one of its provisions, namely protection of rights management information, expressly contradicts WIPO Internet treaties thus undermining the declared purpose of the proposal. A lot still needs to be done to bring Russian copyright law in compliance with international legal standards but in the present situation Russian legislators are misled and tend to miss important points. Therefore, the draft should be significantly altered before it becomes law.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.