Russian Federation: Internet Anti-Piracy Enforcement In Russia

Last Updated: 11 July 2017
Article by Evgeny Alexandrov and Sergey V. Medvedev

Most Read Contributor in Russian Federation, June 2017

Introduction

Russian copyright protection legislation and related court practice is constantly developing. Anti-piracy enforcement focus, in particular, targeted at the Internet segment, is a good example of this interesting trend.

More specifically, the Federal Law No. 187-FZ (so-called the "Anti-Piracy Law/Law") has entered into force on August 1, 2013 and started regulating a unique copyright protection mechanism allowing to block online resources involved in distribution of illegal video content on the Internet. After the enactment of the Anti-Piracy Law, certain significant amendments (the first package) have been effectuated to the Federal Law No. 149-FZ the Information Law, the Civil Procedure Code  as well as the Civil Code of the Russian Federation.

In May 1, 2015, the second package of amendments has been introduced to the Information Law as well as the Civil Procedure Code in order to enhance the general system of copyright protection and online enforcement regime in this jurisdiction. At present, the Anti-Piracy Law is applicable for the purposes of enforcement of exclusive rights to movies (including motion pictures and TV films), music (including sound recordings), literary works (including books), software (including computer programs and databases), broadcastings (including TV programs), and other creative products (results of intellectual activity) protected by copyright and related rights (except photographs), located in various information and telecommunication networks, including on the Internet.

Information Intermediaries' Liability

Anti-Piracy Law defines a wide range of persons (the so-called "information intermediaries") which, along with the other valid infringers, may be found liable for reproduction, use and distribution of illegal content on the Internet, in case their guilt has been established. Such intermediaries have been grouped into the following three (3) types of persons:

  1. persons who transmit the data in the information and telecommunication network (e.g. telecom-operators);
  2. persons who offer an access to the placement of materials or information requisite to obtain the same using the information and telecommunication network (e.g. hosting providers); and
  3. persons who provide an access to materials in the information and telecommunication network (e.g. web-site owners).

Law has also established the terms under which the afore-mentioned entities may be exempt from liability. In particular, the first category of persons will not be liable for IP infringement if the following conditions are duly complied with:

  1. a person does not initiate the transmission of materials and does not select the recipient of the said materials;
  2. a person does not modify the said materials when providing communication services, except for modifications necessary to maintain the technology process for transmittal of materials;
  3. a person was not and should not have been aware of the fact that the use of IP subject matter by the person which initiated the transmission of materials containing the corresponding IP subject matter was unlawful.

The second category of persons will not be liable for IP infringement if the following conditions are duly complied with:

  1. a person was not and should not have been aware of the fact that the use of the corresponding IP subject matter contained in such materials was unlawful;
  2. upon receipt of a written notice from the rights holder warning about IP infringement, in which notice a web-page and (or) IP-address where such materials have been placed is specified, a person has undertaken necessary and sufficient measures to cease the corresponding IP infringement.

Finally, the third category of persons may be exempt from liability for IP infringement if the above-mentioned conditions are satisfied.

Importantly, the asserted claims for enforcement of exclusive rights not involving general civil-law liability may still be applied against information intermediaries irrespectively of establishment of their guilt. For example, the infringement claim may represent a demand on removal of infringing content from the web, or restriction of access to such (illegal) content.

Special Jurisdiction and Preliminary Injunction

Anti-Piracy Law has determined that this particular category of IP disputes should fall within the jurisdiction of the Moscow City Court (the "Moscow City Court/Court"). Therefore, having found an unlawfully distributed content on the information (online) resource, or a web-link for downloading the same, the rights holder – no matter whether it is a company or individual – is entitled to file a motion for preliminary injunctive relief with the Moscow City Court. In so doing, both the rights holder and the exclusive licensee may seek protection/enforcement of its copyright or related rights (Article 1254 of the Civil Code).

According to article 144.1 of the Civil Procedure Code, the Moscow City Court may, upon a written motion of the rights holder or the exclusive licensee, grant the preliminary injunctive relief, before the statement of claims has been filed, aimed at protection of exclusive rights from infringement occurred on the Internet. When filing the motion for preliminary injunctive relief, the claimant shall provide the Court with the documents evidencing the fact of use of the copyrighted object on the Internet and confirming the exclusive rights of the claimant to such object. Failure to submit these documents with the Court may result in the dismissal of the preliminary injunctive relief.

If the preliminary injunction relief is granted, in its Ruling the Court will establish a term (not exceeding 15 days) for filing a statement of claims in respect. The Ruling shall be published on the official web-site of the Moscow City Court. Importantly, if the claimant does not file the statement of claims within the prescribed term the Court will cancel the preliminary injunctive relief. In addition, basing on the Ruling adopted on the issue of the preliminary injunctive relief, the Court will issue a writ of execution and pass it on to the claimant or, upon the claimant's petition, forward the same to the national IT/communications regulator (Roskomnadzor) for the purposes of initiating blocking procedure.

Blocking Procedure

The positive blocking procedure will be as follows:

  • having obtained the writ of execution the rights holder or the exclusive licensee may approach Roskomnadzor with a request for application of measures on the restriction of access to the information (online) resource distributing the illegal content;
  • Roskomnadzor shall, within three (3) business days, determine a corresponding information intermediary (e.g. hosting provider) and send them an electronic notice of infringement of the corresponding exclusive rights. The notice shall be in Russian and English and shall contain all necessary details and the appropriate demand to take necessary steps to remove the illegal content at issue;
  • within one business day from the receipt of the aforementioned notice, the hosting provider (or another information intermediary) shall inform the owner of the information (online) resource, which they service, of this particular notice and notify the owner of the necessity to immediately remove the illegal content from the web and (or) make certain arrangements to restrict the access to the same;
  • within one business day from the receipt of such notice the owner of the information (online) resource is obliged to remove the corresponding illegal content from the web.

In the event of the owner's refusal to remove the infringing content from the web, or the owner's omission to do so, the information intermediary shall restrict the access to the information (online) resource within three (3) business days.

If the information intermediary fails to apply relevant enforcement measures, the respective telecom-operator shall, upon the authorization of Roskomnadzor, restrict the access to the information (online) resource within a day (24 hours) from the receipt of the relevant details of the information (online) resource from Roskomnadzor.

Permanent Blocking

Rights holders as well as the exclusive licensees are allowed to block internet resources permanently. Anti-Piracy Law provides sanctions for the repeated infringement of copyright or related rights. Infringement will be deemed "repeated" if there is an effective earlier decision of the Moscow City Court issued and received at the request of the same claimant.

Pre-judicial Phase

Website owners must list their contact information on their websites. This information must include their names, postal addresses and email addresses. Anti-Piracy Law enables rights holders (exclusive licensees) to send take-down notices directly to website owners using the contact details provided on their web-sites.

Within 24 hours of receiving the take-down notice, the website owner shall either:

  1. remove the infringing content from the web, or
  2. request the additional information from the claimant (e.g. documents proving copyright ownership), or
  3. provide a valid proof that the website owner has been authorized to use the IP subject matter on a legitimate basis, hence avoiding the liability for IP infringement. 

If the web-site owner ignores the take-down notice, or fails to reply, this fact may serve as the evidence of bad faith during the court procedure.

Upcoming amendments

The practice shows that infringers against whom the court decision is issued move their websites to the 'mirrors' (derivative websites) and continue infringement. The current wording of the law does not say about possibility of blocking the mirrors automatically that may lead to the necessity of launching new actions. This omission, however, shall be fixed soon. The respective draft of the bill has already been submitted to the Parliament and envisages that in case of obtaining a court decision on permanent blocking of the website the IP rights' owners may apply with the court with the request to issue an Order that shall allow to block such derivative websites within several hours without launching new proceedings.

Comment

Over the last couple of years, the Anti-Piracy Law has proven to be one of the most effective and useful enforcement tools helping different copyright owners combat with the pirated or illegal content on the Internet. Although not available for enforcement of photo-works protected by copyright law, the Law may be successfully applied to all other works of authorship covered by copyright and/or related rights. According to the official statistics of Roskomnadzor about a thousand of IP subject matters have already been enforced, while more than a thousand of web-resources have been already involved in the proceedings due to application of the Anti-Piracy Law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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