Mechanisms which IP owners can use to combat online piracy in Russia Flashcards
What mechanisms can IP owners use to combat online piracy in Russia?
In August 2013, Russia introduced countrywide blocking injunctions for the rights owners of movies and TV shows, and codified safe harbor principles for information intermediaries.
On 1 May 2015, blocking injunctions also became available to owners of other categories of copyrighted content (with the exception of photographs).
What is the procedure for seeking an injunction against online copyright infringement?
Applications seeking preliminary injunctions should be filed with the Moscow City Court. Alongside the regular paper method there is an option to file the application through an online form on the website of the Moscow City Court. Together with the application, the rights holder should also provide the court with documents confirming: (i) its rights to the disputed works and (ii) the use of such works on the disputed website. In practice, however, when considering such applications, the courts generally do not evaluate the provided documents from the standpoint of their sufficiency and, in almost all cases, such applications are automatically granted by the court.
Once the injunction is granted, the Moscow City Court appoints a deadline for filing a claim (no more than 15 calendar days). If the claim is not filed, the preliminary injunction will be withdrawn. The ruling imposing the injunction will be published on the website and sent to the applicant and the Russian telecoms supervisory authority – Federal Service for Supervision in the Sphere of Telecommunications, Information Technology and Mass Communications (the “Roskomnadzor”).
Further, the law provides for a procedure of executing injunctions by Roskomnadzor. Roskomnadzor must identify the internet service provider (the “ISP”), send a notice with details that will enable the identification of the particular website and work (name of the work, author, rights holder and IP address), and record the date when the notice was sent out.
The ISP must inform the customer and request the immediate removal of the infringing information within one business day. If the customer takes no action, the ISP must limit access within three business days after the receipt of the notice by the customer. Should the ISP fail to perform such actions, this information will be sent to the relevant network operator who must block this website/web page within one day.
In case of repeat violations, the Moscow City Court can permanently block the entire website.
Additionally, from 2017, the rights holder has the right to approach Roskomnadzor and ask it to block “mirrors” of the websites that were permanently blocked by the Moscow City Court due to repeated copyright infringement. Once Roskomnadzor receives such request, it can issue the relevant ruling with respect to the new website as a “mirror” of the permanently blocked one, ordering the “mirror” to be blocked by telecom providers and removed from the search results of search engines.
From October 2020, a similar procedure was implemented for mobile applications containing infringing content. According to this new procedure, the owner of the resource (application store) where the application is located must block the application with the infringing content if the application owner does not block the content upon request. If the blocking does not occur either from the owner of the application or from the side of the application store, then the telecom operators should block it.
To evaluate the provided documents from the standpoint of their sufficiency
Оценивать представленные документы с точки зрения их существенности
the preliminary injunction will be withdrawn
Предварительные обеспечительные меры будут сняты
a procedure of executing injunctions
Процедура исполнения обеспечительных мер
A business day
Рабочий день
Can ISPs be held liable for infringing content placed by third-party users?
The law explicitly states that ISPs cannot be held liable for limiting access to the internet under this procedure.
There are three types of providers identified by the new law:
1) persons transmitting materials in networks (i.e., access providers 2) persons providing the ability to place materials in networks or information required for obtaining such materials (i.e., website and platform operators)
3) persons providing the ability to access materials placed in networks (e.g., hosting providers)
Are there any safe harbor rules allowing ISPs to avoid liability?
An internet access provider cannot be held liable if it (i) does not initiate the transmission, (ii) does not alter materials (except for technical purposes); and (iii) is not and could not have been aware that the use of the materials by the person initiating their transmission is illegal.
A website and platform operator cannot be held liable if it: (i) is not and could not have been aware that the use of the respective IP in such materials is illegal; and (ii) receives written notice of an infringement and expeditiously takes necessary and sufficient measures. Meanwhile, a website operator has to prove that the infringing content was placed on the website by a third party, otherwise it is presumed that the IP rights are infringed by the website operator. Moreover, if a website operator alters the content and/or receives income from the placement of infringing content, it is likely to be held liable for infringement.
With respect to persons providing the ability to access materials placed in networks, the law simply states that the above rules apply to this category without any further specifications.
Nevertheless, even if an ISP meets the above requirements, it is possible to file an infringement claim against an ISP. However, the relief will be limited and will not include damages or statutory compensation.
safe harbor rules
Правила безопасной гавани
