ArticlesCriteria for classifying streaming platforms as information intermediaries in case of violation of copyright and related rights on the Internet
The rapid development of technologies, including high-speed and public Internet, has led to the emergence and development of entertainment Internet services. One of the types of such services has become the so-called streaming platforms that provide online streaming of content. Among the most popular streaming platforms are YouTube (video streaming), Apple Music and Spotify (music streaming). The more popular such platforms become, the more media content is placed on them, which increases the risk of infringement, first of all, of copyright and related rights. The most common violations of rights in relation to such results of intellectual activity as musical works (with and without text), performances, phonograms and audiovisual works. Cases of violation of rights to other objects of copyright and related rights are not rare. The ability for any registrant to upload content (for example, on YouTube) creates additional risks of inappropriate content, which is why some platforms often use the so-called “digital fingerprint system” to prevent such violations. For example, this system works on the YouTube streaming platform: “it is a copy of an audio or video file that is used to search for matches in the Content ID. It is part of an entity and one of three elements that represent your intellectual property in YouTube 's rights management system. Viewers digital prints are not available”. Content ID system allows content owners to find videos where such content is used and monetize such videos, receiving income from them, or block such videos. Having a digital fingerprint system could be one of the most effective solutions for Google LLC (which owns the YouTube streaming platform ), which is most likely interested in reducing the number of conflicts with copyright holders, including those flowing into litigation. However, not every streaming platform has the technology of a digital fingerprint system. In addition, even the presence of such a system cannot completely protect the platform from the claims of copyright holders. So, in accordance with information from the official website of the courts of general jurisdiction in Moscow, in 2021 more than ten lawsuits against Google LLC were considered in the Moscow City Court for infringement of exclusive copyright and related rights on the YouTube streaming platform. A similar situation exists with other streaming platforms, including Russian ones - VK Music (formerly BOOM), Yandex.Music (against which many disputes are also considered by arbitration courts). The most common requirement for foreign platforms is the requirement to prohibit the creation of technical conditions that ensure the placement, distribution and other use of the object (s) of copyright/related rights on the website page of the Internet information and telecommunication network (for example, case No. 3-0616 / 2021 considered by the Moscow City Court). Russian companies often, in addition to the above requirement, are required to recover compensation. This circumstance is due to the fact that it is difficult to enforce a decision of a Russian court to recover compensation from a foreign company outside of Russia: this is possible , for example, if there is an international agreement between the Russian Federation and the state in whose territory the execution of the judgment is supposed to be enforced, which provides for the possibility of mutual execution of judgments. One of the circumstances classically investigated by the court in such cases is the presence/absence of the defendant's status of an information intermediary. As stated in Part 4 of Article 1253.1 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), “ An information intermediary who, in accordance with this Article, is not liable for violation of intellectual property rights, may be required to protect intellectual property rights (paragraph 1 of Article 1250 , paragraph 1 of Article 1251, paragraph 1 of Article 1252 of this Code) not related to the application of measures of civil liability, including the removal of information that violates exclusive rights, or the restriction of access to it. Based on the interpretation of the above provision, it seems that when considering a case in which the owner of a streaming platform is required solely to restrict access to content that violates exclusive rights, the examination of the issue of classifying such a person as an information intermediary should not be carried out by the court, since it is not included in the subject of proof due to the fact that it does not affect the possibility of satisfying the claims. However, the judicial practice of the Moscow City Court goes in a different direction. For example , let's consider case No. 3-1485/2020, in which demands were made and then satisfied to prohibit the defendant from creating technical conditions that ensure the placement, distribution and other use of musical works posted on the information and telecommunications network "Internet" according to those specified in statement of claim electronic links. Despite the above, the court on page 6 of the decision of 12/09/2020 concludes: “the defendant ... being a domain name hosting provider ..., performs the functions of an information intermediary that ensures the possibility of posting and transmitting the content of the specified site on the Internet information and telecommunications network, and as a hosting provider, it may be required to prohibit the creation of technical conditions that ensure the placement, distribution and other use of works that are the results of intellectual activity, since it is the hosting provider that is the person providing the opportunity to post material or information necessary to obtain it using information and telecommunications network, that is, the information intermediary specified in Art. 1253.1 of the Civil Code of the Russian Federation ”. A similar conclusion is made by the First Court of Appeal of General Jurisdiction with its Ruling in the above case dated 05/12/2021: “ Since the claims are filed against the defendant, who is a hosting provider ( information intermediary), and consist in prohibiting the defendant from creating the Internet information and telecommunications network on the website” technical conditions that ensure the placement, distribution, access and any other use of the protected object…”. Arbitration courts take a more detailed approach to examining the issue of the presence / absence of the status of an information intermediary for the defendants in such cases, conducting a study of this issue, first of all, if material claims were made against the defendant. The criteria according to which a person can be attributed to an information intermediary are established in paragraphs 2 and 3 of Article 1253.1 of the Civil Code of the Russian Federation: The information intermediary that transmits material in the information and telecommunication network is not responsible for the violation of intellectual rights that occurred as a result of this transfer, while simultaneously observing the following conditions:he is not the initiator of this transfer and does not determine the recipient of the specified material;he does not change the specified material during the provision of communication services, with the exception of changes carried out to ensure the technological process of transferring the material;he did not know and should not have known that the use of the corresponding result of intellectual activity or means of individualization by the person who initiated the transfer of material containing the corresponding result of intellectual activity or means of individualization is unlawful.Also, the information intermediary that provides the opportunity to post material in the information and telecommunication network is not responsible for the violation of intellectual rights that occurred as a result of the material being placed in the information and telecommunication network by a third party or at his direction, while the information intermediary complies with the following conditions:he did not know and should not have known that the use of the corresponding result of intellectual activity or means of individualization contained in such material is unlawful;if he receives a written statement from the copyright holder about the infringement of intellectual rights indicating the page of the site and (or) the network address on the Internet on which such material is posted, he promptly took the necessary and sufficient measures to stop the infringement of intellectual rights. The list of necessary and sufficient measures and the procedure for their implementation may be established by law. In addition to the above criteria, the Supreme Court provided the following clarifications (set out in paragraph 77 of the Decree of the Plenum of the Supreme Court dated April 23, 2019 No. 10 “On the Application of Part Four of the Civil Code of the Russian Federation” (hereinafter referred to as the Decree No. 10)): Article 1253.1 of the Civil Code of the Russian Federation are an exception to the rules established by paragraph 3 of Article 1250 of the Civil Code of the Russian Federation on the application of liability measures (in the form of indemnification and payment of compensation) for infringement of intellectual rights committed by the infringer in the course of his entrepreneurial activity, regardless of the fault of the infringer. Whether a particular person is an information intermediary is established by the court, taking into account the nature of the activities carried out by such a person (paragraph 2 of clause 77 of Resolution No. 10). As stated in paragraph 78 of Decree No. 10, the site owner independently determines the procedure for using the site (paragraph 17 of Article 2 of the Federal Law of July 27, 2006 N 149-FZ "On Information, Information Technologies and Information Protection"), so the burden of proof is that the material, including the results of intellectual activity or means of individualization, is posted on the site by third parties, and not the site owner and, accordingly, the latter is an information intermediary, lies with the site owner. In the absence of such evidence, it is presumed that the site owner is a person directly using the relevant results of intellectual activity or means of individualization. If the site owner makes changes to the material posted by third parties on the site that contains the results of intellectual activity or means of individualization, the resolution of the issue of classifying him as an information intermediary depends on how active he played in the formation of the posted material and (or) whether he received income directly from the misplacement of material. Significant processing of the material and (or) receipt of the indicated income by the site owner may indicate that he is not an information intermediary, but a person directly using the relevant results of intellectual activity or means of individualization. According to the legal position of the Supreme Arbitration Court of the Russian Federation, expressed in the decisions of the Presidium dated December 23, 2008 No. 10962/08 and dated November 01, 2011 No. 6672/11, the courts should take into account the degree of involvement of the information control and modify its content. The information intermediary is not responsible for the transmitted information if it does not initiate its transfer, does not select the recipient of the information, does not affect its integrity, and also takes preventive measures to prevent the use of objects of exclusive rights without the consent of the copyright holder. In this regard, when considering similar cases, the courts need to check:whether the information intermediary received profit from activities related to the use of the exclusive rights of other entities, which was carried out by persons using its services;whether there are restrictions on the amount of posted information, its availability for an indefinite range of users, the presence in the user agreement of the user's obligation to comply with the legislation of the Russian Federation when posting content and the unconditional right of the provider to remove illegally posted content;the absence of technological conditions (programs) that contribute to the violation of exclusive rights, as well as the availability of special effective programs that allow you to prevent, track or delete posted works. (Resolution of the Intellectual Property Court in case No. А19-28503/17).Based on the foregoing, the presence of a digital fingerprint system (together with other criteria) may affect the recognition of the owner of the platform as an information intermediary. As for the profit criterion, as the Intellectual Property Rights Court pointed out in the Ruling dated 07.07.2021 in case No. А40-78274/2020, it applies not only to websites, but also to applications, even if its owner receives profit from providing access to additional functionality: “ Based on the above explanation, and also taking into account the fact that the company receives income from providing access to additional functionality of the application, which may include unlicensed content, it cannot be recognized as an information intermediary , whose liability for violation of exclusive rights is limited by the norms of Article 1253.1 of the Civil Code of the Russian Federation . Accordingly, the Court for Intellectual Property Rights further concludes that “the norms of Article 1253.1 of the Civil Code of the Russian Federation were not subject to application to the relations in question. The application by the court of appeal of these norms and the recognition of the defendant as an information intermediary is a significant violation of the norms of substantive law. Summarizing the above, when resolving the issue of the status of a streaming service in case of violation of copyright and related rights on the Internet, the above criteria play a significant role, and are used by the courts to resolve such cases in aggregate. At the same time, it seems that in order to be recognized as an information intermediary, a streaming service (its owner) must meet all the specified criteria.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.Features of determining the infringed rights of the plaintiff when claiming compensation for copyright infringement on the Internet
The legal regime for copyright protection is distinguished by the absence of any registration requirements concerning such rights.This is due to the effect of copyright not at the national but the international level because of the copyright adoption of international conventions, to which most countries have acceded.One of the most famous and widespread is the Berne Convention for the Protection of Literary and Artistic Works, signed in Bern, Switzerland, on September 09, 1886. Russia joined this convention in 1995.When filing a lawsuit to recover compensation for copyright infringement and filing a pre-trial claim, the plaintiff must identify which particular rights have been infringed.Since the advent of the Internet and the increase of its influence on people’s daily lives, copyright law has undergone specific changes, including at the international level.To apply to the court for the protection of exclusive copyrights, it is necessary to correctly determine how the work is used (i.e., the specific rights of the plaintiff) that have been infringed.In 1996, some member countries of the Berne Convention signed the WIPO Copyright Treaty concerning the protection of works and the rights of their authors in the digital environment. This treaty is a special agreement of the Berne Convention, Article 20.The WIPO Copyright Treaty introduced a new way of using works, such as communication to the public. Article 8 of the Convention states as follows: “ Without prejudice to the provisions of Articles 11(1)( ii ), 11bis(1)(i) and ( ii ), 11ter(1)( ii ), 14(1)( ii ) and 14bis( 1) of the Berne Convention, authors of literary and artistic works enjoy the exclusive right to authorize any communication of their works to the public by wire or wireless means, including making their works available to the public in such a way that members of the public can access such works from any place and at any time of their own choosing."Although for Russia, the WIPO Copyright Treaty entered into force only in 2009, its provisions also served as a guideline for reforming national legislation.Thus, in 2001, draft law No. 166704-3 “On Amendments to the Law of the Russian Federation “On Copyright and Related Rights” was submitted to the State Duma. This bill was adopted and became law in 2004, adding to the Law of the Russian Federation of 07/09/1993 N 5351-1 (as amended on 07/20/2004) "On Copyright and Related Rights" paragraph 11 of paragraph 2 of Article 16, namely a new method use of the work (right), namely “to communicate the work in such a way that any person may have access to it interactively from any place and at any time of his choice (right of communication to the public)” (effective from 09/01/2006).This method of use also moved to Part 4 of the Civil Code, namely clause 11 of Part 2 of Article 1270 of the Russian Federation the Civil Code: “bringing the work to the public in such a way that any person can access the work from anywhere and at any time of one's own choice (bringing to the public)”.Based on the foregoing, the method of "bringing to the public" refers to the use of work on the Internet but is not the only right, the rights to which may be violated by such use.In this case, when applying to the court for copyright protection on the Internet, or when applying to the infringer with a claim for the purpose of pre-trial settlement of the dispute, it is necessary to take into account some features of the correct indication of the methods of using such work.In paragraph 4 of clause 89 of the Decree of the Plenum of the Supreme Court of the Russian Federation of April 23, 2019, N 10 "On the application of part four of the Civil Code of the Russian Federation" (hereinafter - Decree No. 10) it is indicated: providing access to this work to any person from any place at any time (for example, access to information and telecommunication networks, including the Internet) is the exercise of two powers that are part of the exclusive right - the right to reproduce (subparagraph 1 clause 2 of Article 1270 of the Civil Code of the Russian Federation) and the right to bring to public notice (subclause 11 of clause 2 of Article 1270 of the Civil Code of the Russian Federation).Thus, when applying to the court for copyright protection on the Internet, it is essential to correctly establish the specific ways the infringer used the work and formulate them correctly in the statement of claim.For this, it is necessary to use other provisions of Decree No. 10, in particular, paragraph 56: “ The use of the result of intellectual activity or means of individualization in several ways represents, as a general rule, the corresponding number of cases of the exclusive right INFRINGEMENT. At the same time, the use of the result of intellectual activity or means of individualization by one person in various ways, aimed at achieving the same economic goal, constitutes one violation of the exclusive right. For example, the storage or transportation of counterfeit goods, provided that they are completed by the actual introduction of this product into civil circulation by the same person, is an element of the introduction of goods into civil circulation and does not constitute separate violations in this case; the sale of goods with their subsequent delivery to the buyer constitutes one infringement of the exclusive right.”The above provision means that when filing claims, for example, for the recovery of compensation for the unlawful use of the exclusive right to work on the Internet in two ways of use (reproduction and communication to the public) as separate violations, it is necessary to establish the economic purpose of using the work by the infringer. If the infringer succeeds in proving the same economic purpose for several methods, the court will consider the use of the work by the defendant in two ways as one violation, which will entail a significant reduction in the amount of the requested compensation.This circumstance is confirmed by current judicial practice. For example, the Ruling of the Court for Intellectual Property Rights dated November 7, 2019, in case A40-308292/2018, states the following: communication to the public - represents, as a general rule, the corresponding number of instances of violations of an exclusive right.At the same time, the Court of Appeal did not take into account that the use of the result of intellectual activity or means of individualization by one person in various ways, aimed at achieving the same economic goal, constitutes one violation of the exclusive right (paragraph 56 of the decision of 04/23/2019 No. 10).In this case, it follows from the circumstances the possibility that the economic purpose of the defendant was to provide access to users of the music service hosted on the above-mentioned website (volume 1, sheets of case 41-77), the opportunity to listen to musical works by various authors and performers, including Dimitri Hinter. As a result, placing such works on a server (in computer memory) in digital form and providing access to their listening to visitors of the corresponding site forms, in this particular case a single set of actions, one offense.As a result, the recovery from the defendant twice of 2,350,000 rubles for actions that collectively constitute one offense contradicts the nature of the disputed legal relationship and the above legal position of the highest court outlined in paragraph 56 of the resolution dated April 23, 2019 No. 10".As can be seen from the aforementioned judicial act, applying the provisions of paragraph 56 of Resolution No. 10, the Intellectual Property Court reduced the compensation previously established by the courts by half.In addition to the previously mentioned rights to reproduce and make available to the public, special attention should also be paid to the right to distribute works.Following subparagraph 2 of paragraph 2 of Article 1270 of the Russian Federation Civil Code, “The use of a work, regardless of whether the relevant actions are performed for the purpose of making a profit or without such a goal, is considered, in particular: distribution of a work by selling or otherwise alienating its original or copies.”In this case, the right to distribute the work may also be violated if it is misused on the Internet. In the context of the norms of the current legislation and judicial practice, the distribution of a work on the Internet is understood as providing an opportunity to legally download such a work.A40-306752/2018 (upheld by the Resolution of the Ninth Arbitration Court of Appeal), stating on page 6 the following: that the Company provides a technical opportunity to distribute copies of the results of intellectual activity (RIA) on third-party resources ("Vkontakte," "Twitter," "Facebook," "Odnoklassniki," as well as by automatically generated HTML code for placement on any resources). However, the Claimant does not provide evidence that the Company allows anyone to obtain (download) a copy (copy) of any RIA .”Based on the foregoing, I believe that to correctly use the above-mentioned provisions of the Civil Code of the Russian Federation and Resolution No. 10 when applying to the court, it is necessary to independently mention this provision in the claim and the statement of claim, indicating that the plaintiff considers the use of the work by the defendant in several ways as one offense.In this case, the correct wording may also affect the amount of compensation, but already in favor of the plaintiff - the argument about the violation of several rights of the plaintiff at once, albeit considered as one violation, can be used as one of the arguments about the validity of the amount of compensation declared by the plaintiff, while how incorrect wording would lead to a significant reduction in the amount of compensation requested by the plaintiff.Blockchain technology as a mechanism for ensuring the information reliability about intellectual property rights’ objects
The process of widespread digitalization has become one of the main trends. Every day, new intellectual property objects and technologies appear in the world, and society is actively adopting them to simplify its life. In such circumstances, properly secured protection of intellectual property directly affects the economic development of private entities, the state, and its position in the international arena.Nevertheless, a huge number of violations of intellectual property are committed daily, the lion's share of which is determined primarily by its specificity (intangible form).In the context of the development of private law relations in the field of intellectual property, special attention is paid to the possibility of using new technologies in this area, especially successfully used in other areas of society. One such technology is the so-called blockchain.This technology originated in 2008 and was first used in the Bitcoin cryptocurrency system (currently the most famous and expensive cryptocurrency in the world: the cost of one bitcoin is about 30,000 US dollars).In recent years, technology has gone from being “used by a narrow circle of people” to “introduced at the state level”. So, in 2016 in Georgia, the land property registry was transferred to the blockchain: such actions practically leveled the possibility of forging the official paper on the rights to real estate, which increased the level of attractiveness of the state for business and investment. As a result of the application of this technology, Georgia is considering the possibility of transferring all state registries in the country to the blockchain.It seems that the blockchain use in the intellectual property circulation will increase the level of its protection by transferring and giving legal force to some existing mechanisms for ensuring the reliability of the information in blockchain registries.Thus, the Chairman of the Intellectual Property Court Ludmila A. Novoselova at the intellectual property forum IPQuorum in Svetlogorsk expressed the following opinion: “The question of the fate of the evidence that appears in the blockchain system is being widely discussed today. Today there is no indication that this information has any priority in terms of evidence for the courts. <...> If presumptions are introduced, for example, that the information in the blockchain is correct unless proven otherwise, then this would be very useful for resolving conflicts in court, as it would facilitate the resolution of disputes.The advantage of the technology is its applicability to the entire classification of intellectual property objects - both objects of copyright and related rights (in particular), and objects of patent law, means of individualization. Blockchain can help ensure the reliability of information about certain properties of objects of intellectual property rights (for example, novelty and originality for objects of patent law), as well as fix the date of entering information (which is especially important for objects of copyright due to the lack of requirements for their state registration), which in the future will help to establish the original copyright holder in the event of a dispute or other conflict situation.On October 31, 2008, a person (or a group of people who signed the name Satoshi Nakamoto ) published an article on the Internet: "Bitcoin: a peer-to-peer electronic monetary system." The authors raised the question of why payments made electronically should include intermediaries such as banks? Why should the persons making such payments pay a commission to the banks? To date, the technology is still in its early stages of development. In scientific circles, there is still debate about who Satoshi is. Nakamoto and whether he really was the first person who managed to identify the basic principles of the blockchain and launch its protocol. Nevertheless, Nakamoto outlined the basic rules for the operation of this system:Information about each transaction is transmitted through the system and is available to all its participants;The currency is decentralized ( i.e. not managed by central banks like fiat money);Transactions are irreversible;Ability to make transactions anonymously;The decentralized registry is controlled by specialized computers called nodes (or nodes ).However, over time, people began to become skeptical about bitcoin, because, due to its volatility, it did not correspond to the main functions of money - a store of value and a medium of exchange. Blockchain is seen as the basis for any cryptocurrency that helps them function by bypassing banks.Using the same logic, society sensed the potential in the very ledger on which bitcoin operates – the blockchain has been running smoothly for years according to the rules on which it was based – as a decentralized record of the transactions carried out: each participant in the system interacts with other participants in the exchange of information.There is no centralized data storage in the blockchain, and all transactions are processed and verified by the registry users themselves. Thanks to the popularity of cryptocurrencies, the blockchain has proved its reliability to the whole world and has shown the possibility of mass use at all levels. In studying the practical applicability of the technology, society has come to the conclusion that the technology could significantly simplify social relations where interaction is due to the presence of grounds for mistrusting each other in matters of the authenticity of shared data.There are many similar situations in civil relations: laws in the field of private law are created, among other things, because people do not trust each other.Thus, the blockchain is understood as a distributed database consisting of a continuous chain of interconnected blocks. Decentralization of technology is due to the fact that the said database is stored simultaneously by all participants in the system. Anyone can access information about any transaction in this ledger. Users act as a collective notary who confirms the truth of the information in the database.The applicability of blockchain technology in the intellectual property rights is due to the following:First, the blockchain can help with user identification (instead of a password and other identification technologies). In addition to the standard ways of using technology in this way (gaining access to accounts in mobile applications and websites), I would like to pay special attention to the possibility of identifying a specific person for signing smart contracts (in the field of intellectual property rights circulation).Secondly, the technology can be used to record and record data. For example, the creation of a register containing information about the owners of exclusive rights to intellectual property objects, about the authors of these objects.Thirdly, the possibility of using technology to improve the efficiency and security of the circulation of intellectual rights.With the understanding of the value of blockchain technology precisely as an efficient ledger in which all types of transactions can be recorded (not just transactions with bitcoin), some have come to realize that a distributed ledger is an ideal platform for digital smart contracts.Ludmila A. Novoselova points out that “the technical side of a smart contract in the context of the blockchain is reflected in its definitions as a kind of encoding, a way of functioning of the blockchain; as a piece of code that is implemented on the blockchain platform and is initiated by blockchain transactions, and also organizes the entry of records into the database."In fact, a smart contract is expressed in the form of a program code that stores the terms of the contract and is self-executing, provided that the parties comply with the named conditions. The smart contract algorithm eliminates mediation, which includes unnecessary costs, bureaucratic procedures, and the intervention of other persons.An agreement executed in the form of a program code ensures automatic execution upon the occurrence of the conditions prescribed in such a code (the conditions of the agreement itself). Reducing the number of actions when interacting with counterparties simplifies the conduct of any business. In addition to the most popular platform for creating smart contacts Ethereum, created by Vitalik Buterin (on the basis of which more than 80% of all ICOs are carried out ), platforms such as NEO (Ethereum's Asian analog), EOS, Stellar have also proven themselves in terms of efficiency.The popularity of this technology in Russia is growing every year, it is already used to transfer rights to intellectual property. In the fall of 2020, news outlets reported on the first digital deal to transfer the rights to musical works in Russia. The transaction took place through the IPEX platform, which is part of the IPChain blockchain infrastructure. “In ten minutes, the general director of the Soyuz studio, Alexander Bochkov, agreed on the terms and signed a license agreement with Fonmix to use the track for marketing purposes, immediately receiving payment under the agreement.”The rapid growth in the development of technology has led to the emergence of companies that are engaged in the protection and protection of intellectual property using blockchain technology.One of the most promising in this area is the Bernstein platform - it provides the opportunity to register a software product in the blockchain system. The company issues a certificate of registration, and the registration procedure takes place in the presence of a notary. At the same time, the blockchain itself cannot be called public - the information in it is hidden from third parties, but only until the person who has registered his right has a legal dispute with third parties.Company platform Image Protect allows not only to protect but also to monetize visual objects of intellectual property (images, photos). It uses blockchain technology, as well as the development of artificial intelligence and neural networks. Its essence lies in the inclusion in the register of visual objects of intellectual property for a fee. Own systems monitor the Internet around the clock and allow you to identify all cases of using such images on the Internet. In addition, the platform offers mechanisms for using such images in advertising integrations, which allows the copyright holder to earn money on it.Thus, it can be concluded that blockchain technology has mechanisms that can ensure the information public reliability about intellectual property rights objects. The algorithms on which this technology is based allow us to say that the information entering the register has the property of public reliability due to the impossibility of changing this information, including by hacking the system.Despite the fact that the use of blockchain technology solves such problems as ensuring the reliability of the information contained in a distributed ledger, it has not received wide distribution in intellectual property. This may be due to the lack of legislative consolidation of the information reliability stored in such registers.Means of proving authorship in a lawsuit
Current Russian legislation does not require state registration or any other formalities for the emergence, exercise, and protection of copyright. The legal doctrine traditionally distinguishes the creative nature of creating a work and the expression of the work in objective form as conditions for its protectability (i.e., the circumstances under which the current legislation grants legal work protection).At the same time, the procedure for voluntary state registration is provided for such objects of copyright as a computer program and a database.At the international level, this idea has been enshrined since 1908 in Article 5 of the Berne Convention for the Protection of Literary and Artistic Works, signed in 1886: “the use of copyright and their exercise” is not connected with the fulfillment of any formalities; such use and exercise do not depend on the existence of protection in the country of origin of the work ”, and is reflected in domestic legislation.Thus, in accordance with Article 1257 of the Russian Federation Civil Code (hereinafter referred to as the Civil Code of the Russian Federation), “The citizen whose creative work it was created is recognized as the author of a work of science, literature or art. The person indicated as the author on the original or copy of the work, or otherwise in accordance with paragraph 1 of Article 1300 of the Russian Federation Civil Code, is considered its author unless otherwise proven.According to paragraph 4 of Article 1259 of the Russian Federation Civil Code, “For the emergence, exercise and protection of copyright, registration of a work or compliance with any other formalities are not required. However, concerning computer programs and databases, registration is possible and carried out at the copyright holder's request in accordance with the rules of Article 1262 of the Russian Federation Civil Code.The above legal approach creates difficulties when it is necessary to prove one's authorship by protecting copyright in court, especially in authorship disputes. However, this approach is primarily due to the need to ensure a balance of private interest and public interest - because the number of copyright objects created daily is many times greater than the number of other intellectual property objects, establishing the obligation to register them will create significant difficulties for the authors of such objects.As pointed out by the Supreme Court in paragraphs 109-110 of the Decree of the Plenum dated April 23, 2019, N 10 "On the Application of Part Four of the Russian Federation Civil Code” (hereinafter referred to as Resolution No. 10), “ When considering a case on copyright protection by the court, one should proceed from the fact that, until proven otherwise, the author of a work is considered to be the person indicated as such on the original or copy of the work or otherwise in accordance with paragraph 1 of Article 1300 of the Russian Federation Civil Code (Article 1257 of the Russian Federation Civil Code), in the Register of Computer Programs or in the Register of Databases ( paragraph 6 of Article 1262 of the Russian Federation Civil Code). The need to study other evidence may arise if the authorship of a person to work is disputed by presenting relevant evidence.At the same time, there is no exhaustive list of evidence of authorship.Thus, when applying to the court for the protection of their rights, a copy of the work, on which the author's name is indicated, will be sufficient to prove the authorship of the work. In the event that opponents properly challenge a person's authorship, a more compelling range of evidence may be required to prove authorship.Unfortunately, appropriation of someone else's creative work is a common problem. The imprudent behavior of the authors may lead to a situation where a third party not only assigns authorship to work but also begins to monetize it without the consent of the real author. Meanwhile, the current legal approach does not mean that copyright cannot be enforced.To provide the right holder with a means of notifying third parties about the copyright to work belonging to him, the legislator has provided for such a method as the use of a legal protection mark. According to Article 1271 of the Russian Federation Civil Code, “To notify of the exclusive right to a work belonging to him, the right holder has the right to use the copyright protection sign, which is placed on each copy of the work and consists of the following elements:Latin letter "C" in a circle;the name or designation of the copyright holder;year of first publication of the work.Traditionally, such a designation looks like this: "Ivan Ivanov © 2022". In addition, it is also customary in business practice to indicate the period in which the copyright holder has exclusive rights to a work or the year of their acquisition - this is necessary in order not to mislead third parties about the current copyright holder in a given period, given that exclusive copyrights may be transferred.As for the ways of fixing copyrights that are not related to computer programs and databases, as judicial practice shows, one of the most effective ways to fix copyrights is the deposit of a work. This method is consistent with the presumption of authorship, expressed in Article 1257 of the Russian Federation Civil Code, and is actively used in courts when proving authorship of a work. The most common way of depositing is to apply to a collective rights management organization (hereinafter referred to as the CMO), acting based on Articles 1242-1244 of the Russian Federation Civil Code, with a statement on the deposit of the work.When applying to such an organization, the applicant submits the original material carrier with the work (for example, for a literary work, this may be the work itself on A4 paper), indicating the author and the date of creation of the work, and other documents provided for by the rules of a certain CMO. In addition, for the implementation of the deposit procedure, the applicant, as a rule, is subject to payment of a sum of money following the tariffs of the CMO.Upon completion of the registration of the work, as a rule, one copy of the work remains in the CMO archive, and the second copy, at the request of the author, can be provided to him with the seal of the OKUP. In addition, the author is issued a certificate indicating the date of his application for a deposit, the title of the work, as well as his surname, name, and patronymic (if any). The certificate is also signed by the head of OKUPa, a seal is affixed.However, it should be borne in mind that the deposit of work, although consistent with the presumption of authorship, expressed in Article 1257 of the Russian Federation Civil Code, is still not proof of authorship. The deposit is proof that a certain person identified himself as the author on a certain date.This position was reflected in the Ruling of the Supreme Court of the Russian Federation (hereinafter referred to as the Supreme Court), dated September 17, 2020, in case No. 305-ES20-8198, which stated the following: “The fact of the deposit by Chernus G.V. The appearance of toys as works reflected in the album of prefabricated wooden products confirms only the existence of such objects of the copyright at the time of deposit, but does not in itself confirm the right of authorship of Chernus G.V. to these objects.Copyright in work arises by creating an object that meets the conditions of protectability: being the result of the author's creative work and expressed in an objective form.With this in mind, only evidence confirming the creation of a work by a specific person (for example, testimonies, publications, drafts, evidence based on the establishment of the author's creative style, etc.) can establish the authorship of a particular person.The deposit of work is a voluntary procedure not provided for by law, with which the law does not associate the occurrence of any consequences. Depositing only confirms the existence of a copy of a specific work at a certain point.Because of the preceding, the Supreme Court quashed the final judgments of the three lower instances and remitted the case for a new trial to the Moscow Arbitration Court (the court of the first instance in this case).In essence, a deposited work is the exact copy of the work with the name of the person who calls himself the author. Still, with one difference - the deposit date is confirmed by an independent person, i.e., OKUP, which gives such evidence additional weight.As for other means of proving authorship, screenshots can be highlighted among them. In accordance with paragraph 2 of clause 55 of Decree No. 10, “ Admissible evidence is, among other things, printouts of materials posted on the information and telecommunications network (screenshot) made and certified by the persons participating in the case, indicating the address of the Internet page from which the printout, as well as the exact time of its receipt. Such printouts are subject to evaluation by the court when considering the case on an equal basis with other evidence (Article 67 of the Russian Federation Civil Code Procedure, Article 71 of the Russian Federation Arbitration Procedure Code ).For example, authorship can be confirmed by screenshots of a web page where the author himself posted the work. At the same time, for such screenshots to confirm the above facts, such Internet pages must indicate the name of the author and the date of publication of the work.For example, authors of audiovisual works (hereinafter referred to as WUAs) often use screenshots from the YouTube streaming service as proof of authorship - in such a screenshot, in the description of the video, the name of the author may be indicated. The date of publication of the WUA is automatically shown by the service without third parties' participation, which gives such evidence an appropriate degree of certainty. In the case of WUA or other media content (for example, musical works), video recording of the monitor screen can also be used (both independent and obtained by inspecting the site by a notary within the framework of paragraph 6 of clause 55 of Resolution No. 10).In order to give additional weight to the evidence mentioned above obtained independently, the persons participating in the case may file a petition for inspecting the website directly at the court session. The Supreme Court pointed out this possibility in paragraph 7 of clause 55 of Decree No. 10: 78 and clause 3 of part 1 of article 135 of the Russian Federation Arbitration Procedure Code, in the manner prescribed by these articles, the examination of evidence and their examination on the spot (in particular, to view the information posted on a certain resource of the information and telecommunications network in real-time) is entitled.As other evidence in judicial practice, there are others:Evidence of the creation process (which can be correspondence, copyright contracts, provision of an unprocessed photograph along with a camera in a dispute about the authorship of a photograph, etc.);A common piece of evidence is also a copy of the work sent by the author to himself in a sealed envelope by registered mail. The court also accepts this evidence. However, if the opponents have more probative evidence (for example, a deposited copy of the work), the court may decide not in your favor;Witness testimony can also serve as evidence of the creation of a work by a particular person on a certain date (a certain period). However, it should be noted that the court will evaluate such evidence in conjunction with other evidence, including those listed above.Summarizing the foregoing, the court evaluates all of the above evidence in their totality, depending on what was specifically presented and the degree of reliability of such evidence for the court. With an equal degree of certainty, the court decides in favor of the person who provided as evidence of the author information about the earlier indication of the authorship of such a person. Under such circumstances, in my opinion, the deposit is one of the most reliable pieces of evidence (not counting the state registration of computer programs and databases), and it is recommended to go through this procedure as soon as possible after giving the work an objective form.