Nowadays, social networks are an integral part of Russian’s life, in particular among new generations. As reported by several surveys, around half of the whole Russian population (≈70 million people) daily use social networks. Among them, two are Russian and share most of the social media users, namely Vkontakte or VK (especially used by new generations) which means “in contact” in Russian and Odnoklassniki or OK (especially used by mature women) which means “classmates” in Russian.
That is to say that in Russia, every day are published countless photos, videos, music, films on social media, in particular VK and OK. Therefore, a large number of the published content breach intellectual property rights, and not only the publisher but also the information intermediary, in other words the social networks, are liable for the infringement of rights.
I – Intellectual property rights protection for the unlawfully published content.
It is worth recalling that according to the Russian civil code, in particular under article 1225, the result of intellectual activity (i.e. works of science, literature or art as well as databases) is protected by the law. This means that the individual or legal entity that carried out an intellectual activity will be granted by the Russian legislation an exclusive right on the utilization, distribution, copy etc.… of the results of his intellectual activity (in accordance with article 1226).
Having an exclusive right means that the right holder will be able, at its discretion, to permit or prohibit other individuals and legal entities from using the result of his intellectual activity. Other subjects of law may enjoy only a non-exclusive right only with the prior consent of the right holder, with some exceptions provided by the law. If these rights are breached, then a sentence will be incurred pursuant to the Russian legislation.
- Protection on social media, in particular VK and OK.
Intellectual property rights are equally protected on social media under Russian legislation. Indeed, according to article 1253.1 of the Civil Code, information intermediaries (for instance social media such as VK and OK) are liable for infringement of intellectual property rights which occurred on their platform except if:
- they are not the initiator of the publication and does not determine the recipient of the material.
- they did not know that the publication is infringing and are not deemed to know it.
- they took timely sufficient measures following the writing statement of the right holder on the violation of intellectual rights.
To take one example, in 2011, a lawsuit has been filed against the private limited company LLC "In Contact", which is the administrator of the domain name vk.com, for the unauthorized use of the plaintiff’s musical works on the website.
On this occasion, the different courts that have been in charge of the case confirmed that the domain name administration will always be liable, regardless who published the content and what is indicated on the user agreement. In addition, the passivity or delay of the domain name administration in his responses to the judiciary is considered an evidence of guilt.
Thus, in this case, the Thirteenth Arbitration Court of Appeals issued the ruling and awarded the plaintiff 210’000 rubles (around 2930 euros).
II – Intellectual property rights protection for the lawfully published content.
- Content reutilized by other licensees.
The content lawfully distributed all over social media (or by the right holder themselves, or by another person with the consent of the former) does not slip through the fingers of the right holder. The copy, the redistribution of the published content is still, in principle, not permitted without consent.
For instance, when it comes to the reutilization of the published content by other users, the terms of VK, on article 7.1.3., declares the following: "by posting content on the site that is legally owned by the user, the user grants other users […] a non-exclusive right to use it within the scope of the functionality provided by the Site".
The terms of OK are even more restrictive as article 7.4.5. indicates that the Licensee is not allowed to use “the Content that belongs to the Licensor, Licensees or third parties and that is subject to copyright or other exclusive rights without prior permission of the right holder, except in cases specified in this Agreement and legislation of the Russian Federation in force (applicable legislation) as well as in situations when the copyright holders have given express consent to free use of their own Content by any person.”
Thus, the grounds for liability of social media listed on (I) are applicable in this situation as well. Under the aforementioned terms, other licensees (users) are only entitled to use the published content on the website through the specific functionalities placed at the disposal of the users by the platform. In other words, sharing a picture published on a user’s webpage with the specific functionality “share” will not be unlawful, but downloading this picture to publish it by the same token will result in a violation of intellectual property rights that could be charged to the social network as well.
B.Content reutilized by licensors.
It is worth mentioning that the content lawfully published on a social media cannot be used, distributed… by the social media network itself, regardless of the ambiguity of the social network’s user agreement on this issue.
In fact, when it comes to VK, the article 7.1.5 reminds us that "the user grants the site Administration a non-exclusive right to use the content posted on the Site and belonging to him on legal grounds free of charge...". Thus, a user publishing content on which he has an exclusive right will still own this exclusive right after the publication, which means that he will still be able to restrict adverse utilizations coming from the social media itself.
The terms of OK are even more limiting the licensors’ fields of action as the article 5.14. declares the following: “by posting Content on the Social Network, the Licensee grants to the Licensor the rights to use the Content solely for the purpose of the Social Network functioning by appropriate methods”.
However, uncertainty remains when it comes to groups, pages and communities founded on social media as well as the material published on these groups. For instance, in 2017, Stanislav Cmagin, a famous Russian blogger, founded on the social media Vkontakte a group dedicated to the Exhibition of Achievements of National Economy (or EANE), which is a trade show and amusement park located in Moscow.
In 2017, the organization in charge of the latter sent a request to the blogger to transfer the administration of the group to EANE itself, and further to his refusal, the organization asked the social media platform itself, Vkontakte, to transfer the administration of the group. Following this request, the social media platform decided to transfer the administration of the group to EANE, which sparked an outcry.
The social network claimed that "a page on the social network cannot be the personal property of the user”. This is a reference to the article 7.1.1. of the user agreement which states that “All objects placed on the Site, including design elements, text, graphic images, illustrations, videos, scripts, software, music, sounds and other objects and their collections (hereinafter the Content) are subject to exclusive rights of the Site Administration, Users and other rights holders, all rights in these objects being reserved.”
Therefore, from a legal point view, nothing is less certain. The very format, model of page, just like the website in its entirety surely correspond to “all [those] objects” which belong to the site administration, namely VK. However, one could argue that the distinctive page as well as the material published on them is nevertheless owned by the user, just like any lawfully published content.
In this regard, the blogger Stanislav Cmagin declared that he intends to file a lawsuit. Let’s hope this would help clarifying the legal situation.
User agreement of Vkontakte: https://ok.ru/regulations
User agreement of OK: https://vk.com/terms