“The Evil Will Be Punished”: Russia Establishes Federal Service For Copyright

This article provides an update on recent changes in the copyright legislative and regulatory framework in Russia, in particular, following up on the first decisions enforcing the recently introduced law against online video piracy and the announcement of the establishment of the new federal authority for copyright.

A television series with a telling title, “The Evil Will Be Punished,” was subject to preliminary injunctions in a dispute initiated by a Russian broadcasting company “Teleradiokompaniya Peterburg” over unauthorised making available online. In the decision of 28 October, the Moscow city court ruled in favour of the applicant for injunctions and ordered the Federal Service for Supervision of Telecommunication, Information Technologies and Mass Communication of the Russian Federation to take measures to technically disable making the TV series available on the website http://serialu.net/.

In July, Russia adopted 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 law introduced new substantive norms and procedural rules aimed at tackling the problem of online copyright infringement (hereinafter, the Federal Law No. 187) (IPW, Copyright Policy, 24 July 2013).

According to the new procedural rules, when submitting an application for injunctions, the applicant needs to prove the entitlement to protection of allegedly infringed exclusive rights and the fact of the unauthorised making available online of the video content at issue. Then in order to enforce the injunctions, the applicant has to file the lawsuit within 15 days upon the issuance of such order; otherwise, the order for injunctions can be vacated.

Under the new law, the Moscow city court has exclusive jurisdiction to consider, as the court of first instance, cases involving exclusive rights in video content made available online without the authorisation of rights holders.

The decision in the “The Evil Will Be Punished” dispute is the most recent one out of nearly 60 cases considered by the Moscow city court since the new law entered into force. Among the applicants for preliminary injunctions are mostly Russian media companies, including major broadcasting companies such as Channel One Russia and All-Russia State Television and Radio Broadcasting Company.

All decisions concerning applications for preliminary injunctions can be found here.

Notably, almost all websites whose operations were targeted by the preliminary injunctions issued by the Moscow city court continue functioning and offer remarkably broad selections of films. Some even continue making available those productions that were subject to the injunctions. (For instance, the film titled “Amerikanskij Zhenih” (“American Bridegroom”) that was subject to the preliminary injunctions ordered by the decision of the Moscow city court of 24 October is still available on the website http://dom2.tomsk.ru (as of 12 November).

Thus, although it might be early to evaluate the long-term effectiveness of the new law in reaching the objectives of combating online video piracy, the current situation hardly gives any sign of significant improvement.

Against this backdrop, the concerns raised by Russian nongovernmental organisation “Rossijskaya Obschestvennaya Iniciativa” (“Russian Public Initiative”) that the implemented anti-piracy measures are overly restrictive and adversely impact on the development of Russia’s national Internet-based industries seem to be an overreaction. The petition that gathered support of over 100,000 votes is here.

As reported by Rossijskaya Gazeta, a draft law introducing similar provisions for preliminary injunctions to extend to musical and literary works, software programmes and sound-recordings was submitted to the Russian State Duma in September.

New Federal Authority for Copyright

Apart from the legislative amendments, Russia also plans to implement changes in the institutional and administrative framework for copyright.

As reported by the Russian daily newspaper Izvestiya, the decision to establish the Federal Service for Copyright was adopted at the meeting presided by First Deputy Prime Minister Igor Shuvalov in October.

Alexey Mitrofanov, head of the Committee of the State Duma for Information Policy, said that the new authority will be responsible for control over collective management organisations (CMOs) such as the Russian Authors’ Society (RAO) and the Russian Union of Right Holders, because “some authors are dissatisfied with their work, in particular, remuneration distribution” (as quoted by Izvestiya).

The Russian Ministry of Economic Development is reported to be tasked with preparation of a draft presidential decree. It is expected that the decree will be signed by President by 1 January 2014. The Federal Service for Copyright is expected to start operating as of 1 July 2014.

Currently, the state duties to control operations of collective management organisations (CMOs) for authors’ and related rights as well as to provide for the state accreditation of CMOs are exercised by the Ministry of Culture of the Russian Federation. So far, no official statements have been issued to clarify how the surveillance functions will be reallocated among the authorities and what other responsibilities will be within the mandate of the new Federal Service for Copyright.

Russian Collective Management Organisations at the WTO

Some controversy regarding Russian laws on CMOs arose during the negotiations on Russia’s accession to the World Trade Organization.

Under Russian copyright law, state accreditation authorises a CMO to manage rights on a non-contractual basis (i.e., without explicit authorisation of rights holders). As a practical consequence of this rule, in order to switch to a non-accredited CMO, a right holder needs first to disavow rights management from a government-accredited CMO. Second, they must conclude a contract with another, non-accredited, CMO authorising management of his/her respective rights.

During the accession negotiations, some members of the working party on Russia’s accession “continued to express concerns regarding the possibility of the collective administration of any rights without the express consent of the right-holder to such management, and requested further amendments to Article 1244 of the RF Civil Code.”

In response to these concerns, the representative of the Russian Federation stated that “the Russian Federation would review its system of collective management of rights in order to eliminate non-contractual management of rights” (paragraphs 1213-1219 of the Report of the Working Party on the Accession of the Russian Federation WT/ACC/RUS/70; WT/MIN(11), November 17, 2011).

Notwithstanding this explicit promise, a comprehensive set of draft amendments of the Civil Code of the Russian Federation initiated in 2012 did not include proposals regarding provisions on CMOs. Thus, the limitation of the non-contractual administration of rights cannot be foreseen in the near future.

One could expect that the issue would have been revisited during the post-accession review of Russia’s implementation of accession obligations scheduled for the meeting of the WTO Council on Trade-Related Aspects of Intellectual Property Rights (TRIPS) on 11-12 June 2013.

However, according to the TRIPS Council meeting minutes [pdf], when called upon to report on the questions posed by Switzerland, the European Union and the United States in preparation for the review, the representative of the Russian Federation responded that, “since his delegation faced this kind of procedures for the first time, it had not managed to present responses before the present meeting. His delegation intended to provide responses to the questions posed to it in consultation with its partners in the Council. He requested that the Council postpone the review until the Council’s meeting in October” (TRIPS Council, Minutes of Meeting, IP/C/M/73, 16 September 2013).

The review was rescheduled for October 2013. Notably, only the European Union, among questions posed to the Russian Federation, specifically addressed issues of Russia’s current legislation on CMOs (IP/C/W/588, 15 April 2013). So far, Russia only provided responses to the questions put forward by Switzerland.

Thus, Russian CMOs with the state accreditation continue operating under the provisions that were questioned and called for amendment at the WTO – as well as continue their operation of a vast number of Russian torrent sites.

While the situations reveal different issues of copyright protection in Russia, they raise a common concern whether, in the long run, the implemented legislative and institutional changes will produce a more positive result.