Russian Federation: Copyright

1.1 What are the requirements for copyright to subsist in a work?

For a work to be protected by copyright law in Russia, it must meet the following requirements: 1) originality: the work should be a result of intellectual activity of its author; 2) creativity: the work should be produced as a result of human creative labour; 3) fixation in a tangible medium of expression: the work should be expressed in any objective form, including in written form, oral form (in the form of a public speech, public performance, and in any other form), in the form of a depiction, a sound or video recording, or in a three-dimensional form (art. 1259 (3) of the Russian Civil Code).

It is also important to note that copyright does not extend to ideas, concepts, principles, methods, processes, systems, means, solutions of technical, organisational or other tasks, inventions, facts, or programming languages (art. 1259 (5) of the Russian Civil Code).

1.2 On the presumption that copyright can arise in literary, artistic and musical works, are there any other works in which copyright can subsist and are there any works which are excluded from copyright protection?

In accordance with the law of Russia, the following works are protected by copyright: literary works (including all types of computer programs); dramatic or dramatic-musical works and other works with a scenario; choreographic and mimed works; musical works with or without accompanying text; audiovisual works (cinematographic, television and video films, static projections, slide shows and other cinematographic and television productions); works of painting and sculpture, graphic and design works, cartoon strips and other works of figurative art; works of applied art and stage design; works of architecture, urban planning and park and garden design; photographic works and works obtained by processes analogous to photography; geographical, geological and other maps, plans and sketches, and also three-dimensional works relating to geography, topography and other sciences; derived works (translations, adaptations, annotations, analyses, summaries, reviews, stage adaptations, arrangements and other transformations of scientific, literary and artistic works); collections (encyclopaedias, anthologies, data bases) and other composite works which, by reason of the selection or arrangement of their contents, constitute the result of creative effort.

1.6 Are there any restrictions on the protection for copyright works which are made by an industrial process?

No; the law of the Russian Federation does not provide for any restrictions on the protection for copyright works which are made by an industrial process.

2.3 Where a work is created by an employee, how is ownership of the copyright determined between the employee and the employer?

As a general rule, in Russia, an employee as an author owns personal non-property rights in respect of the work created within the scope of his/her employment duties.  The exclusive right in respect of this work shall belong to the employer unless a labour contract or other contract between the employer and the employee provides otherwise.  It is important to note that if the employer has not started to use the work created by the employee within three years, has not assigned the ownership rights to the work to a third party, nor has he informed the author of keeping the work in secrecy, the exclusive right on the work shall belong to the employee.

2.4 Is there a concept of joint ownership and, if so, what rules apply to dealings with a jointly owned work?

Yes, the law of the Russian Federation provides for the joint ownership of the work.  Copyright of a work created by two or more individuals is owned by each of the authors; thus, each of the authors can use the work at his or her own discretion, where there is no express term to the contrary in the agreement among authors.  The income from the joint use of the copyrighted work shall be shared among all the authors equally, unless otherwise provided for by an agreement among them.

3.1 Are there any formalities which apply to the transfer/assignment of ownership?

The transfer/assignment of ownership of copyright shall be carried out by means of a written agreement signed by both parties.  Under this agreement, the author (or other right holder) transfers an exclusive right on the work to the recipient of such right.  Such an agreement can be paid or free of charge, but it must contain either conditions on the amount of remuneration or an indication of the gratuitous transfer of exclusive rights under the contract.

The official registration of such an agreement is not required.  The only exception to this rule is the registration of contracts concluded with respect to a registered computer program or database.

3.2 Are there any formalities required for a copyright licence?

Copyright licences should be in a written form; thus, an agreement granting a right to use a work in a periodical printed publication may be concluded in oral form.

A licence agreement should contain an indication of the work and the list of methods of its authorised use by the licensee.  A fee-based licence contract shall indicate the amount of fee charged for the use of the work or the procedure for calculating it.

A licence granting a right to use a computer program or database may be concluded by a contract of accession between each user and the relevant right holder, the terms of the contract being available on the acquired copy of the program or database or on the package thereof.  The use of the program or database by the user, as it is defined in the terms, shall be deemed the user's consent to the conclusion of the contract.

Under a contract granting a right to use a work agreed by the author or other right holder with a publisher, the licensee shall commence the use of the work within the term set in the contract.  If this duty is not observed, the licensor is entitled to waive the contract without compensation to the licensee for the losses due to such waiver.

3.3 Are there any laws which limit the licence terms parties may agree (other than as addressed in questions 3.4 to 3.6)?

According to the Russian Civil Code, the duration of the licence contract shall not exceed the term of validity of the exclusive right to the result of intellectual activity.  In case the duration of the licence contract is not defined in the contract, the licence contract shall be considered to be concluded for five years.  With respect to sub-licences, under a general rule of the Russian law, the scope of the sub-licensed rights may not exceed the scope of the rights granted to the sub-licensor under the original licence agreement with the rights holder.  In the case of an international licensing relationship, the Russian law states that the contractual parties are free to set up a licensing contract by inserting certain terms and conditions effective under the international licensing practice, provided that the same do not run afoul of the Russian law, including on royalty rates and on the duration of the contractual term.

3.4 Which types of copyright work have collective licensing bodies (please name the relevant bodies)?

The collective licensing bodies operating in Russia are the following:

Russian Authors' Society – administers rights in published musical works and excerpts from dramatic musical works, the rights of authors of musical works, the royalty resale rights, the rights related to remuneration of authors, performing artists, producers of sound recordings and audiovisual works, and manages literary and other rights.

Russian Organization for Intellectual Property – administers related rights, including the remuneration of authors, performing artists, producers of sound recordings and audiovisual works, rights related to remuneration of performing artists for the public performance, broadcasting of sound recordings published for commercial purposes, and rights related to remuneration of producers of sound recordings for the public performance and broadcasting of sound recordings published for commercial purposes.

Art Copyright Management Society – administers royalty resale rights, and rights related to reproduction of artistic works, photographic works and manuscripts.

Russian Union of Right Holders – administers rights related to the remuneration of authors, performing artists, producers of sound recordings and audiovisual works and provides support to right holders in terms of the enforcement of IP rights.

Russian Authors' Legal Society COPYRUS – administers rights related to remuneration of authors, publishers and other right holders for the reproduction of works, including digital reproduction, monetary issues with foreign authors' societies, and collection of authors' fees from libraries, educational institutions, business centres and other organisations.

Russian Society for Performers' Right Protection – administers rights of authors, performing artists, producers of sound recordings and audiovisual works related to remuneration for reproduction of sound recordings and audiovisual works for personal purposes, rights of performing artists related to remuneration for the public performance and broadcasting of sound recordings published for commercial purposes, rights of producers of sound recordings related to remuneration for the public performance and broadcasting of sound recordings published for commercial purposes, rights of performing artists related to remuneration for the making of relevant performances public, and rights of producers of sound recordings related to remuneration for the making of sound recordings public.

Russian Phonogram Association – secures protection of rights of performing artists and producers of sound recordings, including from the standpoint of remuneration.

3.5 Where there are collective licensing bodies, how are they regulated?

In Russia, activities of the collective licensing bodies are governed by the Russian Civil Law, laws on non-commercial organisations and the charters of the respective organisations.  Such bodies function under the control of the Ministry of Culture of the Russian Federation or under the control of the respective officials from the territorial divisions of the Ministry of Culture of the Russian Federation.

3.6 On what grounds can licence terms offered by a collective licensing body be challenged?

The licence terms offered by a collective licensing body can be challenged by the applicant before a collective licensing body itself or in court only on the standard grounds, e.g. if the terms of a licence are not consistent with the law of the Russian Federation, or if such terms violate the rights or legitimate interests of the applicant or the rights and legitimate interest of a third party.

4.1 What acts involving a copyright work are capable of being restricted by the rights holder?

According the Russian Civil Law, the list of rights of the right holder is 'non-exhaustive'.  In particular art. 1229 of the Russian Civil Code states that the right holder may at his discretion permit or prohibit other persons to use the result of intellectual activity or means of individualisation.  Thus, absence of a prohibition shall not be considered a consent (permission).

4.2 Are there any ancillary rights related to copyright, such as moral rights, and if so what do they protect, and can they be waived or assigned?

The author of the work has the following moral rights (personal non-proprietary rights): to claim authorship of that work (the right of authorship); to use and authorise the use of the work with or without the author's name and pseudonym (the right of author to the name); to carry out alterations or modifications to the work (the right of integrity); to publish, publicly display, publicly perform, broadcast or otherwise make the work available to the public, or to authorise any of the aforementioned (the right of publication); and to recall the decision on publication of the work on the condition of payment of damages to the respective assignee or licensee (the right of recall).  The moral rights are not subject to assignment or licensing.  Such moral rights also cannot be pledged or collateralised in favour of a third party.  Waiver of such rights shall be null and void.  The moral rights are protected perpetually.

4.3 Are there circumstances in which a copyright owner is unable to restrain subsequent dealings in works which have been put on the market with his consent?

The Civil Law of Russia provides for the doctrine of exhaustion of rights with regard to copyright and related rights.  According to this doctrine, if the legitimately published copyrighted work has been put onto the Russian market by way of sale or disposed of otherwise, subsequent distribution of the same shall be allowed without the right holder's consent and without payment of compensation.  If the copyrighted work has been first put onto the Russian market by a third party without the right holder's consent, subsequent dealings with such work are prohibited and may be prosecuted.

5.1 Are there any statutory enforcement agencies and, if so, are they used by rights holders as an alternative to civil actions?

As an alternative to civil action, the right holder can apply to the following statutory enforcement agencies:

The Russian Antimonopoly Service and its territorial divisions, which monitor compliance with competition rules in the sphere of intellectual property.

The Russian Customs Offices, which counteracts the flow of counterfeit goods into Russia on the basis of the Customs Code of the Russian Federation, the Customs Register of objects of intellectual property and cooperation with the possessors of legal rights of brands.

5.4 Are there any general or specific exceptions which can be relied upon as a defence to a claim of infringement?

The Russian law provides for a number of cases where the copyrighted work can be used by a third party without the rights holders' consent.  For example: limited reproduction of works for personal use (with certain exceptions); reasonable quotation of the works that have been lawfully made public; public not-for-profit performances of copyrighted works in social institutions; public performance of musical works during an official or religious ceremony, or funeral; creation of parodies or caricatures based on the works that have been lawfully made public; making limited changes to a computer program or a database in order for them to function properly on a certain computer, as well as making one archive or backup copy of a computer program or a database solely for the instances of the original copy failure or loss.

In addition, the Russian law limits liability of: Internet service providers engaged in online usage and transmission of copyrighted content: persons engaged in the transmission of content in networks (Internet access providers); persons providing the possibility to place content or information required for obtaining such content in networks (website and platform operators); and persons providing the possibility to access content placed in networks (Internet hosting providers).

5.5 Are interim or permanent injunctions available?

Both interim and permanent injunctions are available to rights holders in copyright infringement cases.  Also, the right holder can claim damages or monetary compensation (statutory damages) and publication of court orders in the course of civil proceedings.

5.6On what basis are damages or an account of profits calculated?

To claim damages, the right holder must prove the following factors: 1) the amount of the sustained damages; 2) the fact of copyright infringement; and 3) the nexus between the damages and the relevant copyright infringement.  If the right holder fails to prove one of these factors, the damages shall not be awarded.

Instead of damages, and regardless of the fact of losses, the right holder is entitled to claim monetary compensation (statutory damages) using the following options: 1) in the amount of 10,000 RUB to 5,000,000 RUB (to be determined at the discretion of the court); 2) in the amount equal to double the amount of copies of the copyrighted work; or 3) in the amount equal to double the amount of lawful use of the copyrighted work (the double cost of a copyright licence).  [RW1] Monetary compensation will be awarded only if the fact of relevant copyright infringement is proved by the claimant.  The author of the work can also claim moral damages.

5.7 What are the typical costs of infringement proceedings and how long do they take?

The average costs of the infringement proceedings in the court of first instance may be around USD 3,000 to 5,000.  The proceedings usually take about four to seven months.  If the infringement matter is appealed and further passes all instances, including the Russian Supreme Court, as available under the law, the overall typical costs of the same may be around USD 10,000 to 15,000, and the case can be ongoing for up to two years before eventually being settled.

5.8 Is there a right of appeal from a first instance judgment and if so what are the grounds on which an appeal may be brought?

The first instance judgment can be appealed to the competent court of appeals.  Generally, the grounds for modification or cancellation of the decision of the court of first instance are the following: 1) incomplete clarification of the circumstances relevant to the case; 2) failure to prove the circumstances relevant to the case; 3) inconsistency of the findings referenced in the court decision towards the circumstances of the case; or 4) violation or incorrect application of the substantive law or procedural law.  The incorrect application of the substantive law shall mean the following: 1) non-application of the laws to be applied; 2) application of the laws that shall not be applied; or 3) misinterpretation of the laws.

Violation or incorrect application of procedural rules will be the grounds for cancellation of the decision of the court of first instance in the event such violation resulted in or could lead to a wrong decision.  The grounds for cancellation of the decision of the court of first instance are the following: 1) the trial of the matter by a wrong composition of judges; 2) consideration of the case in the absence of any of the parties (litigants) if they were not properly notified of the time and place of the hearings; 3) violation of the rules related to the language of court proceedings; or 4) other grounds.

Further, the decision of the court of appeals may be appealed to the competent courts of cassation, and finally may be appealed to the Russian Supreme Court.

5.9 What is the period in which an action must be commenced?

6.1 Are there any criminal offences relating to copyright infringement?

Yes, under the Criminal Law of Russia, the following copyright infringements constitute a criminal offence: appropriation of authorship (plagiarism); and illegal use of objects of copyright or neighboring rights, as well as the acquisition, storage or carriage of counterfeited copies of works or phonograms for the purpose of sale. In order to qualify for criminal prosecution, the infringement should cause significant damage or be recurrent.  The Criminal Code punishes serious violations with fines and imprisonment.  Providing sufficient damage and providing the title under the Russian procedural rules are major obstacles to getting criminal investigations started in most cases, especially those involving copyright infringements.

6.2 What is the threshold for criminal liability and what are the potential sanctions?

According to art. 146 of the Russian Criminal Code, appropriation of authorship (plagiarism) shall be punishable with a fine of up to RUB 200,000 or in the amount equal to the wage or another income of the convicted person for a period of up to 18 months, or with obligatory work for a period of up to 480 hours, or by corrective labour for a term of up to one year, or with arrest for a period of up to six months.  Illegal use of objects of copyright or neighboring rights, as well as the acquisition, storage or carriage of counterfeited copies of works or phonograms for the purpose of sale carried out on a large scale, shall be punishable by a fine of up to RUB 200,000, or in the amount equal to a wage/salary or other income of the convicted person for a period of up to 18 months, or by obligatory labour for a term of up to 480 hours, or by corrective labour for a term of up to two years, or by compulsory labour for a term of up to two years, or by deprivation of liberty for the same term.

7.1 Have there been, or are there anticipated, any significant legislative changes or case law developments?

The most recent major legislative changes in the area of copyright and neighboring rights took place with the 2014 Russian Civil Law reform.  As part of the reform, the amended Russian Civil Code introduced new provisions regarding open licences, defined a website as a compilation and specified the "fair use" dealings with the copyrighted works on the Internet.  Furthermore, there were many significant changes in the Russian Civil Code with respect to moral rights, exclusive rights, software/database protection, technical means of copyright protection and liability for copyright infringement.

In 2016, there were several changes related to the procedural issues with regard to the protection of copyright: the compulsory procedure of sending a claim letter 30 days prior to filing a claim with a competent court in case of copyright infringement was introduced.

Regarding the recent intellectual property litigation cases concerning copyrights, the Supreme Court's determination № 308-ЭС14-1400 of 08/06/2016 can be pointed out.  According to this decision, the storage of a work in electronic memory can be considered as a separate way of using the work.  The Court held that the storage of a computer program as a special object of copyright in the computer's memory in the absence of evidence of the legitimacy of storage is a way of misusing the computer program.  This conclusion was based on art. 1.4 of the the WIPO Copyright Treaty and  art. 9 of the Berne Convention.

7.2 Are there any particularly noteworthy issues around the application and enforcement of copyright in relation to digital content (for example, when a work is deemed to be made available to the public online, hyperlinking, etc.)?