Russia Adopts Measures Against Online Video Piracy

Earlier this month, Russian President Vladimir Putin signed Federal law No.187-FZ “On Amending Separate Legislative Acts of the Russian Federation Concerning the Questions of Protection of Intellectual Rights in Information and Telecommunication Networks.” The bill, which amends existing law, aims at boosting copyright protection online and addresses the issue of intermediary liability.

The law, signed into law on 2 July, amends the Civil Code of the Russian Federation, the Civil Procedure Code, the Arbitrazh (Commercial) Procedure Code, and the Federal Law No. 149-FZ of July 27, 2006 “On Information, Information Technologies and Protection of Information.”

In essence, the amendments aim to strengthen copyright protection in online environment. Using the language of the new law, the measures are directed at protection of exclusive rights in “films including cinema films and television films” against violation of exclusive rights in “information and telecommunication networks including internet.”

Among the novelties, the law introduces the statutory definition of “information intermediary” and rules on liability of internet service providers. With regard to video content, the new law sets out special judicial and administrative procedures of copyright protection against unauthorised content distribution.

Background

The initial legislative proposal intended to include measures of protection of rights in other subject matter, such as music and literary works, and sound-recordings. It is expected that special provisions on such content might be introduced later this year.

Efforts to strengthen copyright protection and enforcement against digital piracy have been part of the framework of the ongoing amendment of the Civil Code of the Russian Federation, in particular, Part IV that codifies provisions on intellectual property.

In April 2012, the draft amendments that included over 2,000 changes encompassing all four parts of the Civil Code passed a first reading in the State Duma of the Russian Federation. Later, the original draft was subdivided into several parts to be reviewed separately. Some of the provisions that the newly adopted Federal law No.187-FZ introduced had been initially proposed within the Civil Code draft amendments.

The scale of the digital copyright piracy in Russia has been object of international criticism and concern. Recently, the US Trade Representative, upon the review of the protection and enforcement of intellectual property rights in 95 US trading partners, retained Russia on the Priority Watch List together with Algeria, Argentina, Chile, China, India, Indonesia, Pakistan, Thailand, and Venezuela (See the 2013 Special 301 Report of the US Trade Representative here [pdf]).

More on Russia’s international commitments for copyright protection and enforcement in online environment is here (IPW, WTO/TRIPS, 3 December 2012).

Preliminary injunctions

Under the amended procedural law, the Moscow city court shall have the exclusive jurisdiction to consider, as the court of first instance, cases concerning violation of exclusive rights in films made available online (Paragraph 3 of Article 26 of the Civil Procedure Code of the Russian Federation). The added Article 144.1 of the same code sets out the following procedure for preliminary injunctions.

Upon an application from an organisation or a natural person, the Moscow city court can order injunctions before the legal suit is filed. The applicant for preliminary injunctions has to provide documents proving entitlement to exclusive rights in the allegedly infringed video content and the fact of its unauthorised use on the internet. The application for preliminary injunctions and supporting documents can be submitted online via the official site of the Moscow city court (Note: the form of the special application is not available yet).

Upon consideration, the Moscow city court can issue an order for preliminary injunctions that shall also define the term within which the applicant for the injunctions has to lodge the complaint (the period would be no more than 15 days upon the issuance of the order). In case the legal proceedings are not initiated within the prescribed period, the order for preliminary injunctions shall be vacated.

Limitation of Access to Infringing Video Content

The procedure of limiting access to video content that is distributed without authorisation is established under the amended Federal law No.149-FZ of July 27, 2006 “On Information, Information Technologies and Protection of Information.”

The new Article 15.2 titled, “The procedure of restraining the access to information, which distribution involves violation of exclusive rights in films including cinema films and television films” provides for the details of the process of execution of the court’s order for preliminary injunctions.

Notably, the law entrusts the enforcement function to the federal executive authority for control and surveillance in the sphere of mass media, mass communication and information technology and network, which is, currently, the Federal Service for Supervision in the Sphere of Telecom, Information Technologies and Mass Communication (the ROSKOMNADZOR) established under the Ministry of Telecom and Mass Communication of the Russian Federation.

After the Moscow city court orders preliminary injunctions, the right holder can apply to ROSKOMNADZOR asking it to take measures to limit the access to the video content at issue.

Within three days, the ROSKOMNADZOR is mandated to identify the service provider that renders hosting services and send a notice of infringement in the electronic form in the Russian and English languages including the title of film(s), its author(s), rightholder(s), domain name, and the IP address that allows identification of the infringing website.

When a hosting service provider receives such notice, within one day, it is required to inform the owner of the information resource (a website) and request to take down immediately the unlawfully distributed content and/or take measures to limit access to it.

Within one working day upon the receipt of such notice, the owner of the information resource is obliged to limit the access to the information resource indicated in the infringement notice (notably, the law uses the language to “limit the access”, not to block per se).

If either hosting service provider or the owner of the information resource fails to take the required measure, the communication service provider shall be informed and required to “limit the access” to the website.

In case the order for preliminary injunctions is later vacated by the court, the authority informs the hosting and communication service providers within three working days regarding the cancellation of measures for access limitation.

Information Intermediaries and Special Rules on ISP liability

Among the other novelties introduced by the amendments are the definition of “information intermediary” and provisions on the liability of internet service providers.

The new Article 1253.1 of Civil Code of the Russian Federation defines “information intermediary” as

“an entity that carries out the transmission of content in information and telecommunication networks, including on the internet; an entity that enables the distribution of the content by use of information and telecommunication networks (or distribution of information required to obtain such content); an entity that enables the access to the content in such networks.”

According to the new law, the information intermediary shall be liable for copyright infringement if fault is proved taking into account special provisions on exceptions.

Factors required for the exemption from liability differ depending on whether an information intermediary actually transmitted the infringing content on the internet or enabled such content distribution. In the first case, information intermediaries can be exempted from liability if the following conditions are met:

“(1) they did not initiate the transmission of the content and did not determine the receiver of the content; (2) did not modify the content while providing services, save for the changes necessary by the technical process of transmission; (3) did not know, or ought not to know, that the use of the results of intellectual activity by the entity who had initiated the transmission of the content comprising such results was unlawful” (paragraph 2 of Article 1253.1 of the Civil Code of the Russian Federation).

As for information intermediaries who enabled content distribution over the internet can be exempted from liability if the information intermediary:

“(1) did not know, or ought not to know, that the use of the results of intellectual activity by an entity that initiated the transmission of the content subsisting in the content at issue was unlawful; (2) promptly undertook necessary and sufficient measures to stop the violation of intellectual property rights upon the receipt of the notification from the right holder containing indication of a webpage of the website and/or IP address” (paragraph 3 of Article 1253.1 of the Civil Code of the Russian Federation).

As one can observe, in formulating the safe harbour provisions the Russian legislature adopted some of the language of the US Digital Millennium Copyright Act.

Industry Responses

During the adoption of the new law, the Russian Association of Electronic Communications issued a position paper here [in Russian] that included a proposal for amendment of the draft law. The paper highlighted concerns that the measures under the new law would lead to additional financial and administrative burden on internet service providers, an imbalance of legal interests of right holders and content distributors, the potential risk of abuse of pre-trial measures, and the disruption of the market for digital content due to blocking of IP addresses.

Yandex, the company operating Russia’s leading internet search engine, commented on the draft law that the procedures of access limitation are “against the logic of the functioning of internet” and will be detrimental not only for internet users and website owners, but the right holders themselves. According to the Yandex’ statement, “the chosen method of regulation is aimed to fight not against pirates, but the internet as such, which is almost the same as blocking a highway, on which one accident happened.” The statement is available here [in Russian].

In contrast, Russia’s Association of Film and Television Producers noted that “the adopted law will not answer all questions concerning copyright infringement, but it will, to a significant extent, protect right holders.” Elaborating on the “road” metaphor used by Yandex, the statement of the Association of Film and Television Producers says that “although it might be foolish to block the road because of one accident, something needs to be done if that road does not have signs or marking and the driving of one endangers the safety of others.” Statement here [in Russian].

The application of the new provisions and the operation of the adopted procedures, i.e., their effectiveness and efficiency for Russian as well as foreign right holders, can be assessed after the amendments enter into force on 1 August 2013.