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4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

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8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

Quantitative Analysis Of Contributions To NETMundial Meeting

A quantitative analysis of the 187 submissions to the April NETmundial conference on the future of internet governance shows broad support for improving security, ensuring respect for privacy, ensuring freedom of expression, and globalizing the IANA function, analyst Richard Hill writes.


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    Special Report: Russia Amends IP Law In Advance Of WTO Accession

    Published on 12 July 2012 @ 11:36 am

    By for Intellectual Property Watch

    As of September of this year, Russia is expected to become the 154th member of the World Trade Organization – 19 years after the accession application was received and the Working Party on the Accession of the Russian Federation established in June 1993. In advance of the accession, the Russian intellectual property rights law is being amended to meet the WTO accession requirements.

    The Accession Package was adopted by WTO members at the Ministerial Conference on 16 December 2011, and on 7 June 2012 the Accession Protocol was submitted for the ratification of the Russian State Duma, the lower house of the Russian Parliament. It was ratified on 10 July, and once the WTO secretariat receives the notification of the ratification, Russia’s accession will be completed.

    At present, Russia remains the biggest economy outside the WTO, and aspirations to benefit from its integration into the global system of trade relations are high, both, at Russia’s and trading partners’ ends. It is “a win-win deal” that is expected to “cement the integration of the Russian Federation into the global economy,” as pronounced by the WTO Director General in a statement on Russia’s accession.

    Although Russia has amended its legislation in recent years in an effort to raise intellectual property rights protection up to the standards of the international IP treaties, the Russian IP legal framework and its compliance with the TRIPS standards raised many ‘concerns’ and ‘requests for clarifications’ from WTO members during pre-accession negotiations. The Report of the Working Party on the Accession issued on 17 November 2011 (henceforth, ‘the Accession Report’) documents these concerns, as well as Russia’s commitments to adopt national legislation to adhere to the WTO requirements.

    Russia’s Current Law Development

    In parallel to the Accession Protocol, another major document has been underway for president’s signature: the Draft Federal Law ‘On Amending the First, Second, Third and Forth Parts of the Civil Code of the Russian Federation, and other Independent Acts of Legislation of the Russian Federation’ introduced to the Russian State Duma in April by Dmitry Medvedev at the end of his presidential term.

    The revisions took almost four years, contain over 2,000 amendments encompassing all four parts of the Civil Code, and are considered as the major legislative initiative since the 1st Part of the Civil Code was adopted in 1995.

    According to [in Russian] now Prime Minister Medvedev, the draft law presents significant modernization of key provisions of the civil legislation.

    As characterised [in Russian] by Minister of Justice Alexander Konovalov, the novelties reflect the vast judicial practice accumulated during the past 15 years; they are “not political by nature, but driven by life and based exclusively on the interests of the Russian commercial intercourse, Russian and foreign investors, and Russian citizens.”

    Konovalov also commented [in Russian] that the amendments are designed to strike the balance between providing stimulus for the development and utilisation of new technologies, on the one hand, and protecting interests of right-holders, on the other.

    According to [in Russian] Pavel Krasheninnikov, head of the Committee of the State Duma for the Civil, Criminal, Arbitration and Procedural Legislation, “those amendments that aim to regulate the use of the results of intellectual activity on the internet and other information and telecommunication networks, are the most substantial modifications of the Fourth Part of the Civil Code and are necessitated by mass infringements of IP rights on the internet.”

    The Fourth Part of the Civil Code codified Russian IP laws and entered into force on 1 January 2008.

    Copyright Protection and Enforcement in Digital Environment

    Within the IP agenda, copyright protection and enforcement in the digital environment have been the particular focus of WTO pre-accession bilateral and multilateral negotiations, especially, due to Russia’s vast share in the global market across copyright-based industries, the trans-border nature of the internet infrastructure, and information intermediaries’ activities allowing for the dissemination of copyright content ever-faster and uncontrollable.

    As assessed by the Office of the United States Trade Representative in the annual ‘Special 301’ report issued on 10 February 2012, Russia remains among the 10 countries recommended to be placed on the Priority Watch List in 2012.

    The present amendments to the Civil Code contain norms regulating the use of copyright-protected content on the internet and other information and telecommunication networks. Among the legal novelties are the notions of ‘internet site’ and ‘information intermediary’.

    The amended Article 1260 (2) defines ‘internet site’ as “a collection of independent materials expressed in the objective form and systematized in such a way that they can be posted on the internet.” Internet site is added to the list of categories of the subject matter protected under the exclusive rights after anthologies, encyclopaedias and databases.

    A new Article 12531 introduces the notion of ‘information intermediary’ (or ‘internet provider’), i.e., “an entity that carries out the content transmission on the internet or provides colocation services.” The internet provider shall be liable for copyright infringement if the fault is found; however, the provider can be exempted from liability “if (1) s/he did not change the content, except when such changes were necessitated by the technical process of transmission; (2) did not know and did not need to know that certain IP-protected content was used unlawfully by the transmission initiator.”

    The ‘did-not-need-to-know’ defence might leave room for speculation as to under which conditions the ISP’s knowledge that certain material is infringing would be necessary, and what might constitute the ‘necessity’ of such knowledge. The law does not specify liability criteria, nor distinguishes secondary, or contributing, liability of ISPs.

    However, more detailed criteria can be found in the recent judicial practice. In the decisions in ‘Masterhost’ (2008) and ‘Agava Hosting’ (2011) cases, the court concluded that by performing purely technical functions, the ISP did not use works as such and, thus, could not be held liable for copyright infringement. The court highlighted the following criteria allowing to infer copyright infringement by an ISP: an ISP has to be proved (i) to initiate the transmission of information; (ii) to select the recipient of such information; (iii) affect the integrity of the information; and (iv) not to undertake preventive measures against the use of the protected subject-matter without the consent of the right-holder.

    Some recent cases between right-holders and file-sharing websites might illustrate the development of the court’s position on the question of liability for digital infringement.

    For instance, ‘VKontakte’, Russia’s largest social network site with over 120 million registered members worldwide, has been recently involved in parallel litigation, and the court’s standpoint has not been constant.

    In 2008, the Russian State Television and Radio Broadcasting Company (VGTRK) sued ‘VKontakte’ for the unauthorised use of the film ‘Ostrov’, i.e., making the film available for downloading enabled by built-in applications of the website.

    In brief, the court of the first instance dismissed the case having revealed that the film was no longer found at the alleged site at the time of the proceedings. On appeal, the arbitration court dismissed the case, reasoning that the current legislation does not impose on ISPs the obligation to monitor for infringement the stored and transmitted information, and, since the plaintiff did not inform the defendant about the unlawful use of ‘Ostrov’ on the internet, there was no fault, either in the form of intent or negligence.

    In March 2012, the Supreme Arbitration Court of the Russian Federation stayed proceedings against ‘VKontakte’ urging the re-examination of the circumstances in light of the judicial position of the Supreme Arbitration Court developed in the above-mentioned cases ‘Masterhost’ and ‘Agava Hosting’.

    In another case – VKontakte v. Gala Records – the court ruled for the first time that the ISP was liable for copyright infringement (IPW, Enforcement, 30 May 2012).

    Free Licence

    Article 1280 of the Civil Code ‘On Regulating Free Reproduction of Software Programs and Databases’ will be supplemented by a provision on simplified software licensing. Such licence will present a contract of adherence of a shrink-wrap or click-wrap licence type. Except when agreed otherwise, the licence will be considered royalty-free and limited to the period of the ownership of the copy of the software.

    Another type of the open licence will be regulated under Article 1233 ‘On the Disposal of the Exclusive Right’ that will provide for the right-holder to licence his/her results of intellectual activity on the royalty-free bases. Such licence will be limited in scope to certain, explicitly expressed, uses and valid for five years in the territory of the Russian Federation, if not stipulated otherwise. The right-holder will not be allowed to grant such type of licence if a paid licence for the same scope of rights has been granted earlier.

    The free licence shall be published on the official site of the Russian federal executive authority for intellectual property – Rospatent, and during the term its conditions cannot be annulled.

    Technical Means of Protection

    During the WTO accession negotiations, members expressed concerns related to provisions on technical protection measures, which, in their view, needed to be refined to prevent the development of commercial services assisting individuals with circumvention. In particular, the discussion touched upon the scope of Article 1299 (2) (2), which specifies what actions are prohibited as undermining the protection of exclusive rights provided by the technical means of protection.

    In response to these concerns, the representative of the Russian Federation confirmed that, from the accession date, Russia would ensure that “Article 1299 would be interpreted and applied in a reasonable manner in respect to technical means that were directed to circumvent technical protection measures based on criteria such as whether the device or service was promoted, advertised or marketed for the purpose of circumvention, whether the device or service had a purpose or use that was of limited commercial significance other than to circumvent technical means of protection, and whether the device or service was primarily designed, produced, adapted or performed for the purpose of permitting or facilitating circumvention of technical protection.” (see Accession Report, § 1232)

    This language is currently not reflected in the amended Article 1299. Its revised version is supplemented by the provision stipulating that “in cases when the use of a work is allowed without the consent of the author or another right-holder and such use cannot be implemented because of technical measures of protection, the entity willing to implement such use can require from the author or another right-holder either to remove technical means of protection, or allow the use, upon the choice of the right-holder.”

    Collective Management Organisations

    During the WTO accession negotiations, some members of the Working Party on the Accession of the Russian Federation persistently raised concerns regarding the non-contractual administration of rights by collective management organisation. They requested the elimination of the grant of licences of exclusive rights by CMOs without concluding a contract with a right-holder, and the adoption measures for monitoring and holding CMOs accountable “to ensure that right-holders received the remuneration” (see Accession Report, §§ 1213 – 1219).

    In short, Article 1244 of the Russian Civil Code allows only a state-accredited organisation to administer an exhaustive list of rights on a non-contractual basis. In response to the concerns expressed by Members of the Working Party, Russia undertook the obligation to review its system of collective management of rights in order to eliminate non-contractual management of rights within five years after Part IV of the Civil Code was enacted, i.e., by 1 January 2013.

    Although it was expressly requested by members of the Working Group to further amend Article 1244 (see Accession Report, § 1215), the draft amendments leave it unchanged.

    Domain Names and Cybersquatting

    Cybersquatting is currently not regulated under the Civil Code, although the need for norms defining domain administrators’ responsibilities and regulating the use of domain names can be observed in the recent cybersquatting disputes, such as over longines.ru, tissot.ru and windows.ru domains.

    Some provisions regulate the use of domain names in relation to trademark registration. For instance, previously, Article 1483 ‘On Grounds for Refusal of the State Registration of Trademarks’ contained paragraph (9) (3) providing that a trademark cannot be registered if it is identical to a domain name, the right to which arose before the priority date of a trademark.

    The amended article will exclude domain names as a possible ground for refusal of trademark registration. The reasons behind this were concerns raised by WTO members during the accession negotiations stating that domain names are not recognised as intellectual property under the TRIPS, or other IP agreements (see Accession Report, §§ 1252, 1253).

    Overall, revisions affect about 600 articles of the Civil Code. Revisions are available here [in Russian].

    Other IP-related amendments concern provisions on the procedure of the state registration of contracts for licensing and assignment of IP rights; registration of utility models (substantive examination requirement); registration of trademarks (specifying more precisely grounds for refusal); the right to claim compensation instead of damages in cases of infringements of patent and utility model rights; the enlarged and more specified fair use exemptions category, and other.

    The amendments have already drawn international attention and were discussed during the 11th Meeting of the EU-Russia IP Dialogue held in Moscow on 14-15 June 2012.

    The draft law on amending the Civil Code passed the first reading at the Russian State Duma on 27 April and is currently undergoing preparations for the second reading. Earlier, it was announced that the amended Civil Code can be enacted as of 1 September this year; presently, the term of enactment is discussed to be extended till the end of 2012 or even beginning of 2013.

    Ms. Daria Kim (Russia), a researcher with Intellectual Property Watch, holds an LL.M. degree in Intellectual Property and Competition Law from Munich Intellectual Property Law Center. She specializes in copyright management and has been working for art and non-profit organizations, such as Eifman Ballet Theater and the Farukh Ruzimatov Foundation ‘The Reneissance of the Ballet Art’.

    Daria Kim may be reached at info@ip-watch.ch.

     

    Comments

    1. Russia Amends IP Legislation Prior to Signing WTO Accession Protocol « IPEye says:

      [...] (WTO). Prior to the accession, Russian intellectual property (IP) legislation was being amended to: adhere to the WTO accession requirements and; parallel international IP [...]

    2. Russia Amends IP Legislation Prior to Signing WTO Accession Protocol | My Website says:

      [...] (WTO). Prior to the accession, Russian intellectual property (IP) legislation was being amended to: adhere to the WTO accession requirements and; parallel international IP [...]

    3. Countries with high domain registrations deliver the best athletes says:

      [...] An explanation for Russia’s good results in the Olympics could perhaps be found in an inheritance of a Soviet attitude towards winning with “muscular power”, preferably in disciplines with a big Western audience to prove the superiority of the communist model. Its lag in numbers of domain registrations is due to politics and the “.ru” domain widely seen as having a criminal undertone and offering no protection against cybersquatting. [...]

    4. Olympics 2012: More Net, More Medals? says:

      [...] An explanation for Russia: Its lag in numbers of domain registrations is due to politics and the .ru domain widely seen as having a criminal undertone and offering no protection against cybersquatting. [...]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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