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Author
Danil Lugovoy

Lawyer

08 September 2022

Features of intellectual property rights protection in the Moscow City Court of First Instance

In 2013, the Russian Federation adopted the Federal Law "On Amendments to Certain Legislative Acts of the Russian Federation on the Protection of Intellectual Rights in Information and Telecommunications Networks" N 187-FZ of 02.07.2013, which later became known in the mass media as the "anti-piracy law".


Through the above-mentioned law, mainly amendments were made to the current procedural legislation, primarily to the Arbitration Procedure Code (hereinafter referred to as the APC of the Russian Federation), and to the Civil Procedure Code (hereinafter referred to as the CPC of the Russian Federation).


Thus, the law amended article 28 of the Arbitration Code of the Russian Federation, removing from the jurisdiction of commercial courts cases referred by the same law to the exclusive jurisdiction of the Moscow City Court. Part 3 of Article 26 of the Civil Procedure Code of the Russian Federation described such cases. Finally, the law introduced a new article 144.1 of the Civil Procedure Code of the Russian Federation "Preliminary interim measures for the protection of copyright and / or related rights in information and telecommunications networks, including the Internet".


The substantive legislation has also undergone some changes. In addition to the amendments made to Federal Law No. 149-FZ of 27.07.2006 "On Information, Information Technologies and Information Protection", Article 1253.1 of the Civil Code of the Russian Federation was also introduced "Features of the responsibility of an information intermediary", which is currently quite often referred to by the Moscow City Court in its decisions taken under part 3 of Article 26 of the Civil Procedure Code of the Russian Federation.


However, the anti-piracy law was only the first step of the legislator in this area – over the past nine years, several more laws were adopted that could be combined with the term "anti-piracy legislation".


The next law in this series was the Federal Law " On Amendments to the Federal Law "On Information, Information Technologies and Information Protection" and the Civil Procedure Code of the Russian Federation" of 24.11.2014 N 363-FZ, which expanded the list of intellectual property objects that can be applied to the Moscow City Court for protection, making adjustments to the part 2 of Article 26 of the Civil Procedure Code of the Russian Federation, stating it in the following wording (relevant today): "The Moscow City Court considers as a court of first instance civil cases that are related to the protection of copyright and (or) related rights, except for rights to photographic works and works obtained by methods similar to photography in information and telecommunications networks, including the Internet, and for which it has taken preliminary interim measures measures in accordance with Article 144.1 of this Code. In the case of consideration by the Moscow City Court of a case whose proceedings were initiated on the plaintiff's claim after the entry into legal force of a decision rendered by the same court in favor of the same plaintiff in another case on the protection of copyright and (or) related rights in information and telecommunications networks, including the Internet, the Moscow City Court the city court also resolves the issue of permanent restriction of access to the site on the Internet, which repeatedly and unlawfully posted information containing objects of copyright and (or) related rights, or information necessary for obtaining them using information and telecommunications networks, including the Internet."


In addition, the law introduces the possibility of perpetual blocking of sites where information about objects of copyright and related rights was repeatedly posted in violation of current legislation, and also establishes the obligation of the site owner to post his name and contact information on the Internet.


In 2017, the third anti-piracy law was adopted, namely the Federal Law "On Amendments to the Federal Law" On Information, Information Technologies and Information Protection " of July 1, 2017 N 156-FZ, which introduces regulations for blocking mirror sites on the Internet, as well as imposes additional obligations on telecom operators (internet service providers) and search engine operators.


In 2020, Federal Law N 177-FZ of 08.06.2020 "On Amendments to the Federal Law "On Information, Information Technologies and Information Protection" was adopted, which improves the mechanism for protecting copyright and related rights on the Internet.


Among other things, the law expanded the scope of anti-piracy legislation in general. Since the entry into force of this law, copyright holders have the right to apply for the removal of illegally posted content not only on Internet pages (websites), but also in mobile applications, including applications for computers and other devices.


Thus, anti-piracy legislation includes an alternative method of judicial protection of copyright.


Based on the above, we can conclude that the protection of rights in this way allows you to stop the violation in a more expedited manner than when applying to a court of general jurisdiction or an arbitration court.


As indicated in the previously mentioned Article 144.1 of the Civil Procedure Code of the Russian Federation, the court, upon a written application from an organization or citizen, has the right to take preliminary interim measures aimed at ensuring the protection of copyright and (or) related rights, except for the rights to photographic works and works obtained by methods similar to the applicant's photo in information and telecommunications networks, on the Internet, prior to filing a claim.


Such an application can be submitted via a special form on the website of the Moscow City Court if the applicant has an enhanced qualified electronic signature, attaching electronic documents confirming the circumstances set out in the application (as a rule, documents confirming the applicant's rights are attached, as well as the fact that they are used on the Internet).


When submitting such an application in relation to websites, it is important to correctly indicate the links where the use of intellectual property objects is made, since this will depend both on the fact of satisfaction of the application itself and on the further implementation of the definition of its satisfaction.


As stated in Article 141 of the Civil Procedure Code of the Russian Federation, an application for securing a claim is considered on the day of its receipt in court without notifying the defendant or other persons involved in the case. The judge or court issues a ruling on taking measures to secure the claim.


Granting the above-mentioned application, the Moscow City Court also obliges the Federal Service for Supervision of Communications, Information Technologies and Mass Communications (hereinafter - Roskomnadzor) and other persons to stop creating technical conditions that ensure the placement, distribution and other use of works that are the subject of the application on the website of the information and telecommunications network "Internet" (for example Decision of the Moscow City Court of 20.06.2022 No. 2I-7329/2022 on preliminary provision of protection of exclusive rights).


In addition, the Moscow City Court, in its ruling, sets a procedural time limit of up to fifteen days from the date of the ruling for the applicant to file a statement of claim on the request, in connection with which the court has taken measures to ensure the interests of the applicant. The decision itself is published on the website of the Moscow City Court no later than the day following the day of its issuance.


If the court issues a ruling on refusal to take preliminary interim measures, the Moscow City Court explains the right to re-submit the specified application with the fulfillment of the stated requirements, as well as the right to file a claim in the general procedure.


In addition, a private complaint under Article 331 of the Civil Procedure Code of the Russian Federation may be filed with the First Court of Appeal of General Jurisdiction.


After receiving a court ruling on the adoption of preliminary interim measures, Roskomnadzor determines the hosting provider and sends it a notification indicating the name of the work, as well as the specific link by which it is made publicly available on the Internet.


The hosting provider, in turn, notifies the owner of the site on the Internet within one day of the notification received from Roskomnadzor, indicating the need to remove illegal content. If the site owner does not take measures, access to such content is restricted by the hosting provider itself.


If the content is not blocked within three days, Roskomnadzor blocks the content through telecom operators, by entering information about the Internet resource where the disputed content is placed in the unified register of domain names, site page pointers on the Internet and network addresses that allow identifying sites on the Internet, containing information that is prohibited from being distributed in the Russian Federation.


If the applicant has not filed a statement of claim within the time limit set by the court, the court issues a ruling on the cancellation of the preliminary security.


Often, there is a situation where it is enough to take preliminary interim measures to block illegal content, without filing a claim.


As a rule, after the court cancels the decision to take preliminary interim measures, previously blocked links remain closed. This is a common practice for pirated websites and their mirrors.


As an example, we can cite case No. 2I-4495/2022, in which on 29.03.2022 the Moscow City Court issued a ruling on preliminary provision for the protection of exclusive rights, and then, on 17.05.2022, taking into account the absence of a statement of claim, the court issued a ruling on the cancellation of preliminary provision for the protection of exclusive rights. At the same time, links to Internet pages with illegally placed content specified in the definition are still unavailable, which means that the goal of the copyright holder (to stop the violation) has actually been achieved in the shortest possible time, saving significant resources – both financial and temporary.


If an application is submitted for taking preliminary interim measures under Article 144.1 of the Civil Procedure Code of the Russian Federation to combat pirated content distributed on more serious Internet resources, as a rule, claims are filed with the Moscow City Court. This ensures that the preliminary interim measures are extended until the court's decision on the case comes into force, which provides an additional guarantee. In addition, filing a claim allows you to include additional requirements for the protection of exclusive rights – for example, a claim for compensation. However, it is worth noting that in accordance with the established practice, the Moscow City Court awards compensation in a much smaller amount than Arbitration courts. A similar practice exists with respect to the amount of court costs collected for the services of a representative.


It is also worth noting that the consideration of such cases in the Moscow City Court, as a rule, passes much faster than in Arbitration courts or district courts.


As an example, we can cite case No. 3-0975 / 2020, in which:

09.09.2020 the court issued a ruling on the preliminary provision of protection of exclusive rights;

a statement of claim was filed on 24.09.2020;

01.10.2020 the statement of claim was accepted;

On 16.10.2020, the court issued a decision on the merits of the case.

Thus, a little more than one month passed from the moment of applying to the court for preliminary protection of exclusive rights and until the decision was made. This example is not decisive – if it is necessary to perform additional procedural actions, the court may need more time to consider the case on its merits.


In addition, an essential feature of the consideration of cases in the Moscow City Court is its exclusive jurisdiction.


So, as a general rule, a statement of claim for the protection of exclusive copyright and related rights is filed at the place of residence of the defendant (Article 28 of the Civil Procedure Code of the Russian Federation, Article 35 of the APC of the Russian Federation). In such cases, the defendants may often be persons whose place of residence (place of registration) is in countries located outside the territory of the Russian Federation. In such a situation, filing a claim with the court at the respondent's place of residence will entail additional time and financial costs, which in turn may be an insurmountable obstacle for the person whose rights are violated.


Exclusive jurisdiction in this case also includes a territorial criterion-regardless of the location of the defendant, if the dispute meets the requirements referred to in part 2 of Article 26 and Article 144.1 of the Civil Procedure Code of the Russian Federation, the dispute will be considered in the Moscow City Court. As an example, we can cite numerous court cases against the American companies Apple, Google, Swedish Spotify, etc.№№ 3-0546/2022; 3-0021/2022; 3-1511/2020). In practice, there were even cases when an American company filed a lawsuit against another American company in the Moscow City Court (cases of №№ 3-1141/2021; 3-1012/2021).


Summarizing the above, we can conclude that the mechanism of protection of exclusive copyright and related rights in the Moscow City Court, established by anti-piracy legislation, allows you to stop violations of exclusive rights on the Internet in a fairly short time, including in relation to foreign companies and individuals, which is why it is an effective method of judicial protection, which is recommended for there is no immediate need to block controversial content, as well as if the violator belongs to a foreign jurisdiction.

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