The main body of Russian intellectual property (IP) legislation is contained in Part IV of the Civil Code and generally corresponds to international standards. Russia is a party to the major international IP treaties, such as the Berne Convention, the Madrid Agreement Concerning International Registration of Trademarks, and other agreements administered by the World Intellectual Property Organization, as well as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (which Russia joined as a prerequisite to its accession to the World Trade Organization (WTO)).
Nonetheless, in practice, substantial piracy of IP continues to occur in the Russian market, prompting complaints from the international business community. In response, and particularly as part of the steps required to join the WTO, the Russian authorities have undertaken substantial efforts to adopt reforms and enhance enforcement of IP rights.
Particular attention is now being paid to piracy on the Internet, with a focus on copyright infringement. This is especially relevant given the popularity of the Internet in Russia; 70 million Russians have Internet access, and the market continues to grow impressively.
In the latest proposed reform, Part IV of the Civil Code would be amended to impose “contributory liability” on Internet service providers (ISPs) and other online service providers, such as website owners, “torrent trackers,” and operators of social networks (collectively, Operators), in connection with piracy involving their platforms, such as the distribution of films, television programs, or videos without the permission of the copyright owners.
In the past, Russian law generally has not recognized the notion of contributory liability for ISPs or Operators. Persons uploading unauthorized content onto the Internet could certainly be found liable for copyright infringement;1 however, they were often hard to identify or catch. In contrast, ISPs and Operators were relatively easy to identify, but were not considered to be liable for infringing content being transmitted and/or received by their customers.
Following developments in some other countries, Russia will now seek to impose liability on ISPs and Operators. The policy argument is that while they are not “primary” infringers, ISPs and Operators offer web space, file storage, and other technical support for uploaders and profit from the use of infringing material. Further, ISPs and Operators are in a position to block infringing content upon notice from copyright owners.
Accordingly, the draft legislation introduces the concept of “information intermediaries” (i.e., ISPs and Operators) and establishes criteria to determine when they are liable for copyright infringement. In brief summary:
- ISPs will not be liable provided that (1) they do not change the information being transmitted and (2) they do not and could not know that the use of such information by the user is unlawful.
- Operators will not be liable provided that (1) they do not and could not know that the use of information by the user is unlawful, and (2) upon receipt of written notice from the copyright owner, they undertake all necessary measures to stop the infringement in a timely manner.
These rules are largely based on Russian court practice that has developed in recent years. In fact, certain Russian courts have taken a progressive approach to these issues and have interpreted the existing provisions of the Civil Code to expand potential liability for ISPs and Operators.2 (Operators have generally responded by employing standard agreements with website users that seek to shift liability for infringement to the users.)
With the proposed new amendments, these recent trends will become formalized as statutory law. Once adopted, the amendments will allow copyright owners to pursue not only individual uploaders but also ISPs and Operators for copyright infringement on the Internet. In response, ISPs and Operators will need to consider making corresponding changes to their technical and business models, as well as to the legal documentation that they sign with users, to protect their legal position.