Liability of Internet service providers for copyright infringements in Russia: recent developments
Part IV of the Civil Code of Russia
Part IV of the Civil Code of the Russian Federation (Part IV of the Civil Code) came into effect on 01 January 2008, bringing together all the rules governing intellectual property that had previously been included in a variety of laws. Part IV of the Civil Code includes both general provisions applicable to all types of intellectual property rights (i.e. provisions on liability for intellectual property infringements) and rules governing specific areas of IP such as copyright, related rights, know-how, inventions, utility models, designs, trademarks, etc.
However the new legislation did not address a number of important issues in the area of intellectual property.
Previous Russian legislation on intellectual property has never had any provisions regarding the liability of Internet service providers (ISPs) for violations of copyright or related rights.
The new legislation failed to address this issue as well despite the increasing number of copyright infringement cases where the Internet providers are involved.
In that regard Part IV of the Civil Code differs from the legislation of the European Union countries and the USA.
In the USA, for instance, this matter is dealt with by the Digital Millennium Copyright Act of 1998 and in the European Union by Directive 2000/31 of the European Parliament and of the Council of Europe of 8 June on certain legal aspects of information society services, in particular electronic commerce, on the Internal Market (E-commerce directive).
Both the DMCA and the E-commerce Directive exempt certain categories of ISPs for liability provided the latter comply with a number of requirements.
It is worth noting that the Russian Law “On information, information technologies and protection of information” dated 27 July 2006 contains provisions on exemption of ISPs from civil liability in the following cases:
Provider performs services on the transmission of information that has been given by a third-party provided that the information is transmitted without any changes; or
Provider performs services on information storage and provision of access to such information provided the ISP could not have been aware of the illegality of such information.
However, this Law does not apply to intellectual property and, hence, these provisions do not protect ISPs from liability for copyright and related rights infringements.
Under the general rule of any copyright protection regime, use of works is permitted only upon obtaining consent of the copyright owner unless specific exceptions apply (i.e. exception for private copying).
Part IV of the Civil Code regrettably does not contain any exceptions for ISPs.
The issue of Internet providers’ liability for copyright infringements was recently considered in Resolution of the Supreme Arbitration (Commercial) Court of the Russian Federation of 23 December 2008 No. 10962/08.
The resolution analyzes the liability of Internet hosting-providers for copyright infringements committed by users.
The facts of the case can be summarized as follows.
The plaintiff that owned copyright in a number of music works sued the Internet hosting provider for infringement of its copyright.
The plaintiff argued inter alia that the music works have been unlawfully made available on the web site hosted by the defendant.
The courts of lower instances found the hosting provider liable for copyright infringement however the Supreme Arbitration (Commercial) Court of Russia disagreed with the lower instance courts.
The Supreme Arbitration (Commercial) Court based its position on the following arguments:
The hosting-provider merely performs the technical functions. The provider is not normally allowed to access the equipment or somehow change the information, therefore, the general rule is that the user should be liable for the information posted on the website.
To find the hosting – provider liable for copyright/related rights infringements it should be proved that it knew or could have known about the violation of copyright or related rights. The burden of proof in this case lies with the rightholder.
The hosting-provider may thus be liable for violations of copyright and related rights only if it can be proved that it initiates the transmission of information, selects the recipient of the information and can somehow influence the integrity of this information. The provider must be responsible only for information that it has itself posted on the Internet or in the placement of which it somehow participated.
The fact that the provider in that case assisted in seeking out the person that posted music works unlawfully and that the rightholder did not send a request to the provider first, was a serious argument in the provider’s favour. The Supreme Arbitration (Commercial) Court concluded that the provider did not use the music works and can not be liable for copyright violations.
This decision was praised by Internet community in Russia.
However in the absence of clear regulatory framework for the liability of Internet providers in the Russian Federation, the legal uncertainty in that area still remains. Russian IP legislation needs specific provisions that will deal with liability of Internet service providers.
Draft concept on improvement of legislation on Intellectual Property in Russia
The Draft concept on improvement of legislation on Intellectual Property has been published in May 2009 (the Draft).
While the Draft notes the codification of intellectual property legislation was an important step in the creation of more efficient legal regime of IP protection, it also admits that Part IV did not address a number of important IP issues. Therefore, there is a need for further legislative activity in that area.
The Draft highlights that it is impossible to provide efficient IP protection in the field of information technology without clear rules of service providers’ liability.
The Draft suggests the following major principles of the ISPs’ liability:
ISPs should be liable for placing the unlawful content that infringes the rights of third parties only if conditions of application of such liability are clearly defined in the law;
There has to be a “notice and take down procedure” similar to the one in the DMCA;
The IP owners should be able to send complaints to the ISPs;
The ISPs should promptly react to complaints of the IP owners;
If the ISPs do not properly act upon receipt of an infringement notice, they should be liable for copyright/related rights violations;
The aim is to create a certainty for the ISPs so that they will know how to act when they receive notification.
The Draft only represents a concept of future legislative reforms in the area of IP. The text of the future draft law on amendments to the Part IV of the Civil Code should be published in the middle of next year.
Hopefully, it will provide a solution to the problem of ISPs liability in Russia and bring local IP legislation in line with the EU and the US IP laws.
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