Not only "by necessity"
On September 24, the Duma considered and adopted in the third reading amendments to the fourth part of the Civil Code of the Russian Federation. On September 29, the amendments were approved by the Federation Council. The next step is the signature of the President, after which they will become law. Because of the ambiguous wording “ by necessity, ” which lawmakers plan to add to the article of the Civil Code of the Russian Federation allowing copying works for personal purposes, the draft law has already become the subject of wide discussion. Did not write about it unless the lazy blogger ...
However, besides the “necessity” in this document there are many other interesting changes, from which we all can popolat no less ...
“ Necessity ”
')
The draft law on amendments to several articles of the fourth part of the Civil Code is a document with a complicated fate. His first reading took place in July 2008, the second in January 2009 . He provoked discontent of the Internet public even then, in 2009, mainly also because of “necessity”. After that, the project lurked to deliver the final blow just now.
Article 1273 of the Civil Code allows the creation “for personal use” of copies of some copyrighted works. These include music and movies, and do not include programs: it is prohibited to copy them “for yourself” without the permission of the copyright holders. Of course, further distribution of such copies is not permitted. Another essential condition for such copying is that the work must be “legally publicized,” that is, the right holder must give his consent for it to be made available to an unlimited circle of persons. “The right to make public” is enshrined in article 1268 of the Civil Code of the Russian Federation . Therefore, all sorts of "assembly copies" stolen from the studios before the premiere of the film cannot be copied "for yourself" either.
Amendments are planned to allow copying to add another condition: it will be possible to do this “if necessary”. Even the Legal Department of the Duma, which prepared a review of the draft, objected to such wording. According to the management, it will make the text of the legal norm uncertain, and, as a result, unconstitutional: “The proposed criterion is not concrete, its interpretation in practice may become a source of disputes. In its decisions, the Constitutional Court of the Russian Federation has repeatedly drawn attention to the fact that the uncertainty of a legal norm does not ensure its uniform understanding and gives rise to conflicting law-enforcement practice, and by itself violating the requirement of certainty of a legal norm entailing its arbitrary interpretation by a law enforcer is sufficient to recognize such a norm does not comply with the Constitution of the Russian Federation ... "
According to the explanatory note, the addition of “necessity” is aimed at ensuring that the text of the article more fully corresponds to the thirteenth article of the WTO Agreements on Trade-Related Aspects of Intellectual Property Rights (TRIPS) . The text of this article contains an abstract requirement for the acceding countries to reduce the limitations of exclusive rights "to some special cases that do not conflict with the usual use of the work and unreasonably do not infringe the legitimate interests of the right holder." The changes introduced by the draft law are not mentioned at all in TRIPS, which, by the way, is also stated in the conclusion of the Legal Department.
... and not only she
However, besides the notorious “necessity” in the project there are several other unpleasant innovations . The first of these is related to the so-called “ copyright protection ”. As a general rule, the creation, distribution and use of any devices and technologies for circumventing or removing these “remedies” is prohibited. The third paragraph of Article 1299 of the Civil Code of the Russian Federation gives the right holder the opportunity to demand damages or compensation for violation of these provisions of the law. With one exception: "except when this Code allows the use of the work without the consent of the author or other copyright holder."
Such cases are listed in article 1280 of the Civil Code of the Russian Federation , which entitles the owner of a copy of a program to perform certain actions, including installing it on a computer, launching it, decompiling to eliminate errors, and so on. If this removes the copyright protection tools, the copyright holder may not claim damages or compensation. Simply put, if to install an honestly purchased program on a computer, you have to “break off” copy protection, such actions are not punishable. According to law.
Unfortunately, in practice, our militia does not take into account such subtleties of the law, and qualifies the “crack” under article 273 of the Criminal Code of the Russian Federation as “malware”. This practice has been established for a long time and is widespread everywhere, while no one cares that this article provides for responsibility for programs that commit "unauthorized actions", which "cracks", of course, do not do. But very soon, when the bill is passed, they will become completely banned: the words about “cases where the use of the work is allowed without the consent of the author or other copyright holder” are to be excluded from the text of the article.
The authors of the draft in an explanatory note write that such changes "exclude the possibility of exemption from liability of manufacturers of technical means intended to eliminate technical measures for the protection of copyright." But then ordinary users, who are now allowed to "break the protection" of the law, can be held accountable. Of course, the Legal Department indicated this. Of course, to no avail ...
And finally, the last significant innovation awaits us in the domain name domain . As is known, in the fourth part of the Civil Code of the Russian Federation ( Article 1483 ) there was a ban on registration of a trademark that is identical to an existing domain name. This ban hampered the so-called “reverse seizure” of domain names, that is, the situation when a trademark is registered that repeats the “promoted” domain name in order to take this name out of court.
In practice, everything was not so simple: it was also important whether the domain owner was engaged in activities in the same area in which the trademark was registered. But our legislators, so that the domain owners do not seem like honey, in the bill about the “necessity” they decided at the same time to remove this ban. Reason: “... The TRIPS Agreement does not classify a domain name as a protected object, therefore, there is no reason to oppose it to a trademark.”
Do we need to be afraid?
“Copying as necessary”, as already mentioned, was the subject of fierce online discussions. Public opinion is inclined to think that “now we all will be put to prison” - this is what most commentators are worried about when discussing any draft law related to copyright. However, something is not heard about the mass landings, which suggests that these fears are exaggerated. Indeed, the indefinite criterion of "necessity" can be understood in any way. But this is precisely why no rightholder, if it comes to court, can prove its absence. And he will have to prove it in accordance with the so-called “presumption of good faith”, enshrined in the tenth article of the Civil Code of the Russian Federation. This general principle of civil law means that until the contrary is proven, the good faith of participants in civilian traffic is assumed. The fact of a possible violation of the law must be proved to those who allege this violation. And if we are talking about a criminal process, then we will have to prove the existence of a “necessity”.
As for the fiction about the "browser cache", in which "without necessity" everything is copied, viewed on the Internet, then this problem is sucked from the finger. The fact is that the usual viewing of works posted on the web in general is not their “use" in the sense that the law puts into this concept. Actions that constitute such “use” and may violate copyright are listed in the second paragraph of Article 1270 of the Civil Code of the Russian Federation . Watching a video or listening to a song can be it only if they are performed publicly and constitute a “public show” (paragraph 3). To do this, there should be a significant number of people who are not in the “ordinary family circle”.
This is a very common mistake - when “using the work” is understood not as a list of powers from article 1270 of the Civil Code of the Russian Federation , but “using” in the “everyday” sense of the word, that is, generally any actions with the work. The same article includes the definition of "reproduction", which is not meant to watch or listen, but to create a new instance (the confusion between these concepts is another common mistake). So, the so-called "temporary copies" are excluded from the "reproduction", which constitute "an integral and essential part of the technological process, with the sole purpose of lawful use of the record or the lawful communication of the work to the public." That is, all sorts of caches are also not “use of the work”. So, the total check of mp3-players on the streets is still far.
The “ risk group ” may include those users who have been confiscated computers for something: they can be accused of “illegal copying” of movies and music on hard drives. But the probability of this is extremely small. But anyone who may have serious problems - so is the owners of domain names. The bill removes a ban on registration of a trademark similar to an existing domain name. Even with the current legislation, this prohibition in some cases did not help the domain owners.
Of the most “iconic” cases related to domain names, we can recall cases because of “lad-m.ru” and “interelektrik.ru”. In the first case, the dispute arose because of the brand name "Lad-m." There was also a corresponding trademark, which was absolutely legally registered before the fourth part of the Civil Code of the Russian Federation came into force. But in the second case, TZ "Interelektrika" was registered already when it was operating. The result of both processes was a ban for domain owners to administer them.
The “lad-m.ru” case reached the Presidium of the Supreme Arbitration Court, which in one of its rulings indicated the priority of the right to a trademark over the domain administration right: “... the right to a domain name is not classified by the Civil Code of the Russian Federation as an exclusive right, therefore, when applying this rule of law, the court of cassation should have taken into account paragraph 63 of the joint Resolution of the Plenary Sessions of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation of 26.03.2009 No. 5/29 “ On some issues deductions arising in connection with the introduction of part four of the Civil Code of the Russian Federation ”, which clarifies that a person in whose name a trademark is registered cannot be denied protection (even if the court presents evidence of the illegality of registration of a trademark sign) to the recognition of the legal protection of such a trade mark invalid in accordance with the procedure provided for in Article 1512 of the Civil Code , or termination of the legal protection of a trademark in the manner prescribed by article 1514 Ko eksa. "
In other words, according to the court, a domain name is generally unknown what, and the rights to a trademark or company name stand above it in terms of “protectability”. Even if TK is registered illegally - you must first appeal the registration, but until then it will be protected. That was the case with the Interelectrics.
With the disappearance of the ban on such registration from the law, the generation of such reasons for a claim is much simpler. It is enough to register a TK similar to a domain - and the owner of this domain will immediately become a violator of the exclusive right to this TZ. And the “violated right” will be protected in any case, unlike the domain ...
Of course, not everything is so simple: the court will take into account the factual circumstances of the case and may refuse such a seizure, stating that the claimant is abusing his right. And maybe not refuse. In general, it is not clear how the practice will be formed, and this amendment may actually become a legalization of “reverse capture”. With the introduction of such tougheners, legislators usually nod at the civilized West and international conventions. However, upon closer examination, it turns out that nothing similar is written in the conventions, and Western copyright legislation is much more liberal than ours. There they do not pursue those who download something from the network for personal purposes, and when hunting for siders in torrent networks they are not brought to criminal responsibility, but to civil liability. More recently, the Library of Congress allowed the use of hacking copy protection in some situations - and our lawmakers decided to eliminate such a right altogether.
However, besides the “necessity” in this document there are many other interesting changes, from which we all can popolat no less ...
“ Necessity ”
')
The draft law on amendments to several articles of the fourth part of the Civil Code is a document with a complicated fate. His first reading took place in July 2008, the second in January 2009 . He provoked discontent of the Internet public even then, in 2009, mainly also because of “necessity”. After that, the project lurked to deliver the final blow just now.
Article 1273 of the Civil Code allows the creation “for personal use” of copies of some copyrighted works. These include music and movies, and do not include programs: it is prohibited to copy them “for yourself” without the permission of the copyright holders. Of course, further distribution of such copies is not permitted. Another essential condition for such copying is that the work must be “legally publicized,” that is, the right holder must give his consent for it to be made available to an unlimited circle of persons. “The right to make public” is enshrined in article 1268 of the Civil Code of the Russian Federation . Therefore, all sorts of "assembly copies" stolen from the studios before the premiere of the film cannot be copied "for yourself" either.
Amendments are planned to allow copying to add another condition: it will be possible to do this “if necessary”. Even the Legal Department of the Duma, which prepared a review of the draft, objected to such wording. According to the management, it will make the text of the legal norm uncertain, and, as a result, unconstitutional: “The proposed criterion is not concrete, its interpretation in practice may become a source of disputes. In its decisions, the Constitutional Court of the Russian Federation has repeatedly drawn attention to the fact that the uncertainty of a legal norm does not ensure its uniform understanding and gives rise to conflicting law-enforcement practice, and by itself violating the requirement of certainty of a legal norm entailing its arbitrary interpretation by a law enforcer is sufficient to recognize such a norm does not comply with the Constitution of the Russian Federation ... "
According to the explanatory note, the addition of “necessity” is aimed at ensuring that the text of the article more fully corresponds to the thirteenth article of the WTO Agreements on Trade-Related Aspects of Intellectual Property Rights (TRIPS) . The text of this article contains an abstract requirement for the acceding countries to reduce the limitations of exclusive rights "to some special cases that do not conflict with the usual use of the work and unreasonably do not infringe the legitimate interests of the right holder." The changes introduced by the draft law are not mentioned at all in TRIPS, which, by the way, is also stated in the conclusion of the Legal Department.
... and not only she
However, besides the notorious “necessity” in the project there are several other unpleasant innovations . The first of these is related to the so-called “ copyright protection ”. As a general rule, the creation, distribution and use of any devices and technologies for circumventing or removing these “remedies” is prohibited. The third paragraph of Article 1299 of the Civil Code of the Russian Federation gives the right holder the opportunity to demand damages or compensation for violation of these provisions of the law. With one exception: "except when this Code allows the use of the work without the consent of the author or other copyright holder."
Such cases are listed in article 1280 of the Civil Code of the Russian Federation , which entitles the owner of a copy of a program to perform certain actions, including installing it on a computer, launching it, decompiling to eliminate errors, and so on. If this removes the copyright protection tools, the copyright holder may not claim damages or compensation. Simply put, if to install an honestly purchased program on a computer, you have to “break off” copy protection, such actions are not punishable. According to law.
Unfortunately, in practice, our militia does not take into account such subtleties of the law, and qualifies the “crack” under article 273 of the Criminal Code of the Russian Federation as “malware”. This practice has been established for a long time and is widespread everywhere, while no one cares that this article provides for responsibility for programs that commit "unauthorized actions", which "cracks", of course, do not do. But very soon, when the bill is passed, they will become completely banned: the words about “cases where the use of the work is allowed without the consent of the author or other copyright holder” are to be excluded from the text of the article.
The authors of the draft in an explanatory note write that such changes "exclude the possibility of exemption from liability of manufacturers of technical means intended to eliminate technical measures for the protection of copyright." But then ordinary users, who are now allowed to "break the protection" of the law, can be held accountable. Of course, the Legal Department indicated this. Of course, to no avail ...
And finally, the last significant innovation awaits us in the domain name domain . As is known, in the fourth part of the Civil Code of the Russian Federation ( Article 1483 ) there was a ban on registration of a trademark that is identical to an existing domain name. This ban hampered the so-called “reverse seizure” of domain names, that is, the situation when a trademark is registered that repeats the “promoted” domain name in order to take this name out of court.
In practice, everything was not so simple: it was also important whether the domain owner was engaged in activities in the same area in which the trademark was registered. But our legislators, so that the domain owners do not seem like honey, in the bill about the “necessity” they decided at the same time to remove this ban. Reason: “... The TRIPS Agreement does not classify a domain name as a protected object, therefore, there is no reason to oppose it to a trademark.”
Do we need to be afraid?
“Copying as necessary”, as already mentioned, was the subject of fierce online discussions. Public opinion is inclined to think that “now we all will be put to prison” - this is what most commentators are worried about when discussing any draft law related to copyright. However, something is not heard about the mass landings, which suggests that these fears are exaggerated. Indeed, the indefinite criterion of "necessity" can be understood in any way. But this is precisely why no rightholder, if it comes to court, can prove its absence. And he will have to prove it in accordance with the so-called “presumption of good faith”, enshrined in the tenth article of the Civil Code of the Russian Federation. This general principle of civil law means that until the contrary is proven, the good faith of participants in civilian traffic is assumed. The fact of a possible violation of the law must be proved to those who allege this violation. And if we are talking about a criminal process, then we will have to prove the existence of a “necessity”.
As for the fiction about the "browser cache", in which "without necessity" everything is copied, viewed on the Internet, then this problem is sucked from the finger. The fact is that the usual viewing of works posted on the web in general is not their “use" in the sense that the law puts into this concept. Actions that constitute such “use” and may violate copyright are listed in the second paragraph of Article 1270 of the Civil Code of the Russian Federation . Watching a video or listening to a song can be it only if they are performed publicly and constitute a “public show” (paragraph 3). To do this, there should be a significant number of people who are not in the “ordinary family circle”.
This is a very common mistake - when “using the work” is understood not as a list of powers from article 1270 of the Civil Code of the Russian Federation , but “using” in the “everyday” sense of the word, that is, generally any actions with the work. The same article includes the definition of "reproduction", which is not meant to watch or listen, but to create a new instance (the confusion between these concepts is another common mistake). So, the so-called "temporary copies" are excluded from the "reproduction", which constitute "an integral and essential part of the technological process, with the sole purpose of lawful use of the record or the lawful communication of the work to the public." That is, all sorts of caches are also not “use of the work”. So, the total check of mp3-players on the streets is still far.
The “ risk group ” may include those users who have been confiscated computers for something: they can be accused of “illegal copying” of movies and music on hard drives. But the probability of this is extremely small. But anyone who may have serious problems - so is the owners of domain names. The bill removes a ban on registration of a trademark similar to an existing domain name. Even with the current legislation, this prohibition in some cases did not help the domain owners.
Of the most “iconic” cases related to domain names, we can recall cases because of “lad-m.ru” and “interelektrik.ru”. In the first case, the dispute arose because of the brand name "Lad-m." There was also a corresponding trademark, which was absolutely legally registered before the fourth part of the Civil Code of the Russian Federation came into force. But in the second case, TZ "Interelektrika" was registered already when it was operating. The result of both processes was a ban for domain owners to administer them.
The “lad-m.ru” case reached the Presidium of the Supreme Arbitration Court, which in one of its rulings indicated the priority of the right to a trademark over the domain administration right: “... the right to a domain name is not classified by the Civil Code of the Russian Federation as an exclusive right, therefore, when applying this rule of law, the court of cassation should have taken into account paragraph 63 of the joint Resolution of the Plenary Sessions of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation of 26.03.2009 No. 5/29 “ On some issues deductions arising in connection with the introduction of part four of the Civil Code of the Russian Federation ”, which clarifies that a person in whose name a trademark is registered cannot be denied protection (even if the court presents evidence of the illegality of registration of a trademark sign) to the recognition of the legal protection of such a trade mark invalid in accordance with the procedure provided for in Article 1512 of the Civil Code , or termination of the legal protection of a trademark in the manner prescribed by article 1514 Ko eksa. "
In other words, according to the court, a domain name is generally unknown what, and the rights to a trademark or company name stand above it in terms of “protectability”. Even if TK is registered illegally - you must first appeal the registration, but until then it will be protected. That was the case with the Interelectrics.
With the disappearance of the ban on such registration from the law, the generation of such reasons for a claim is much simpler. It is enough to register a TK similar to a domain - and the owner of this domain will immediately become a violator of the exclusive right to this TZ. And the “violated right” will be protected in any case, unlike the domain ...
Of course, not everything is so simple: the court will take into account the factual circumstances of the case and may refuse such a seizure, stating that the claimant is abusing his right. And maybe not refuse. In general, it is not clear how the practice will be formed, and this amendment may actually become a legalization of “reverse capture”. With the introduction of such tougheners, legislators usually nod at the civilized West and international conventions. However, upon closer examination, it turns out that nothing similar is written in the conventions, and Western copyright legislation is much more liberal than ours. There they do not pursue those who download something from the network for personal purposes, and when hunting for siders in torrent networks they are not brought to criminal responsibility, but to civil liability. More recently, the Library of Congress allowed the use of hacking copy protection in some situations - and our lawmakers decided to eliminate such a right altogether.
Source: https://habr.com/ru/post/105473/
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