New anti-piracy law subjected to criticism

A new anti-piracy draft law On Information, Information Technologies and Information Protection, developed by deputies Vladimir Bortko, Elena Drapeko and Mariya Maksakova-Igenbergs was submitted to the Lower House on June 6, 2013. The document was agreed in the President Administration.

The experts of the Russian Association of Electronic Communications and The Law Commission are not satisfied with the draft law and prepare an alternative one.

The RAEC experts believe that the bill will bring negative consequences. It will cause a massive outflow of Russian website owners to a foreign jurisdiction, financial losses, and widespread violation of rights of law-abiding Russian hosting providers, telecom operators, website owners and users.

What is the idea of the bill?

According to the bill, right holders who find a website with content violating their copyrights apply to the Moscow City Court. The Moscow City Court will be able to block web resources during the trial. After obtaining a court decision on blocking, the right holder applies to Roscomnadzor with a statement to restrict access to the resource.

Roscomnadzor detects the hosting provider of violator’s website and sends a notice to it. Then the hosting provider notifies the website owner within a day, and the violator must remove the controversial content within 24 hours. If the site owner refuses, the hosting provider will have to limit the access to the website. If the hosting provider refuses to block or does not respond, the information on the violating website will be sent to telecom operators who will be required to limit the access to the resource.

Following the bill text analysis conducted by the RAEC Committee on Legal Affairs, the following should be noted:

• There is no need to point out a specific violation. Responsibility for monitoring and filtering.

Draft regulations do not require pointing out a particular case of violation to implement security measures (there is no need for a right holder’s petition to the court, a court decision, or notifying authorized body to point out the violation). Thus, the information intermediary has to carry out monitoring activities.

• Limitation of liability

Changes to the Civil Code Art. 1253.1, Part 4 provide an opportunity to make a claim against information intermediaries for non-pecuniary damage, despite the fact that they are not liable for it in accordance with this article (Section 1, Art. 1251), as well as for compensation of losses and tangible media seizure (Section 1, art. 1252), which completely negates the whole point of the liability limitation regime proposed by this Article 1253.1.

• Controversial content: imbalance of distributor and holder rights

The bill does not provide for a situation when an entity who published controversial content has a corresponding right to publish or distribute. In this case, the content will be deleted or blocked for an indefinite period at the request of the copyright owner. At the same time, the right holder is not obliged to take into account neither exclusive right limitations established by the law, nor the possibility of free use of protected content, as well as any other special cases and assumes no liability for submitting false claims.

• Interim measures

The Civil Procedure Code in its current version does not provide for the adoption of interim measures. The special procedure that allows you to take steps prior to a claim filed seems strange, since the main function of such steps, according to Art. 138 of the Civil Procedure Code, is to prevent the difficulty/impossibility to enforce the judgment on relevant claim. Therefore, in the absence of a claim, the court can not establish the need for action and assess the action for compliance with the requirements of the paragraph 3 of Art. 140 of the Civil Procedure Code, which says that interim measures must be proportionate to the claimant’s request.

In addition, there is no liability for false claim and no compensation for interim measures request in case of failure to comply with requirements to submit a claim within 15 days.

The proposed procedure is also contrary to the usual practice established in many countries and international online platforms, where users have the opportunity to submit a counter notification after receiving the applicant’s blocking requirement.

• Jurisdiction and cognizance

The current version of the bill establishes the jurisdiction of disputes on intellectual property rights protection on the Internet to the Moscow City Court, if the Court adopted interim measures. This provision of the bill is contrary to the Russian procedural law on cognizance and jurisdiction.

The Court must proceed from its jurisdiction over the dispute category when accepting an application for interim measures. Rules on the contrary cause legal uncertainty and lead to a situation when the same category disputes may be under the jurisdiction of various courts (arbitration courts and general jurisdiction courts). At the same time, the category of disputes and their subject structure are the key criteria that influence the jurisdiction.

The bill ignores rules and peculiarities of determining the cognizance of applications for interim measures adoption. Thus, the Arbitration Code says that the legislator when determining the cognizance proceeds from, above all, the effectiveness of submitting an application for interim measures to a particular court and the possibility of concurrent use of the action sought.

• Access limitation

Requiring service providers to block access to information resource will lead to unnecessary, massive and systematic violations of third party rights. Such regulation makes it impossible to consider a number of complex copyright-related issues on eligibility of objects, the order of acquiring exclusive rights to complex objects, free use and statutory rules on exclusive rights limitation.

At the same time, pirate resources will easily find technical ways to circumvent blocking on telecom operator’s networks (switching hosting, dynamic IP-addresses, etc.).

We consider unacceptable the use of complete blocking mechanisms pertaining to websites that are an element of public and legal regulation method to ensure the protection of civil rights.

• Notification

In accordance with sub-paragraph ‘a’ of paragraph 2 of Article 15.2 (the bill version) Roscomnadzor defines the hosting provider as other entity providing hosting... of the information resource. It is not clear what is meant by the ‘any other person’. The absence of such specification will greatly complicate the work of major web resources.

• Time limit for responding a notice

The time limit set for the hosting provider and resource owner to perform actions in accordance with paragraphs 3 and 4 of Article 15.2 (the bill version) is too short and does not take into account weekends and holidays, thereby placing unnecessary financial burden on information intermediaries.

In addition to the above observations, there are conceptual inconsistencies in procedures described by the bill and international practices, the concept of civil law development and the nature of private legal relations in copyright and associated rights.