Once again about the responsibility of providers for violation of intellectual rights
A week ago, a post appeared with the news that Russian President Dmitry Medvedev submitted amendments to the Civil Code for consideration by the State Duma of the Federal Assembly of the Russian Federation. Namely, a new article of the Civil Code has been introduced, which provides for the general principles of liability of information intermediaries (Internet providers): when transferring materials on the Internet or providing third parties with the opportunity to post materials, they will be responsible for the violation of intellectual rights. In the comments, of course, a storm of emotions and a flurry of indignation. Under the cut, I propose to think about the real state of affairs, having studied the new edition of the Civil Code of the Russian Federation and today's law enforcement practice in this category of cases. Caution, boring sheet, you can immediately to the conclusions.
Let's start with the new edition of the Civil Code of the Russian Federation , namely, the very resonant article for us.
Article 1253 1. Features of the responsibility of the information mediator
1. The person transmitting the material on the Internet or providing the possibility of placing material on this network - the information intermediary (Internet provider) is responsible for infringing intellectual rights on the Internet on the general grounds provided by this Code, if there is fault, taking into account the peculiarities established in paragraphs 2 and 3 of this article.
2. An information intermediary transmitting material on the Internet shall not be liable for intellectual property infringements resulting from such transfer, subject to the following conditions:
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1) the information intermediary does not change the specified material after its receipt, except for the changes made to ensure the technological process of material transfer, and
2) the information intermediary did not know and should not have known that the use of a corresponding result of intellectual activity or a means of individualization by the person who initiated the transfer of material containing such a result or means of individualization is illegal.
2. The information intermediary, which provides the possibility of placing materials on the Internet, shall not be liable for intellectual property infringements resulting from the placement of material on the Internet by a third party or upon his instruction, subject to the following conditions:
1) the information mediator did not know and should not have known that the use of the relevant result of intellectual activity or the means of individualization contained in such material is illegal;
2) an information mediator in the event of receiving a written statement from the right holder on the violation of intellectual rights as a result of posting such material on the Internet promptly took necessary and sufficient measures to eliminate the consequences of the violation of intellectual rights provided for by the legislation on information. "
And now let's look at today's law enforcement practice , and specifically on the Decision of the Arbitration Court of St. Petersburg and the Leningrad Region of February 03, 2012 No. A56-57884 / 2010 on the suit “Gala Records” to “V kontakte” because of the songs of the singer Maxim. I quote the key points Solutions:
Based on the clarifications contained in paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of March 26, 2009 No. 5/29 ... to apply to the defendant measures of responsibility for infringement of intellectual rights (recovery of compensation, damages) concerning the presence or absence of guilt of the defendant in violation of the rights of the plaintiff in relation to article 401 of the Civil Code.
According to the legal position of the Supreme Arbitration Court of the Russian Federation set out in Resolution No. 10962/08 of December 23, 2008, on the conditions for applying measures of responsibility to the hosting provider, the courts should take into account the degree of provider involvement in the process of transferring, storing and processing information, the ability to control and change its content. The provider is not responsible for the information transmitted, if he does not initiate its transfer, does not select the recipient of information, does not affect its integrity, and also takes preventive measures to prevent the use of exclusive rights objects without the consent of the copyright holder.
At the same time, there is no evidence that the defendant, as the site administrator, independently recorded audio files containing phonograms of controversial pieces of music into computer memory or added links to previously downloaded audio files to personal pages of users in the case file. In addition, these actions would be contrary to the nature of the social network, which involves filling personal pages by the users themselves.
Based on the above, taking into account the purpose of the information resource and the lack of evidence confirming the implementation (initiation) of downloading (placing) the disputed content directly by the respondent, the court concludes that such content was posted independently by the website users.
Based on the presumption of good faith of users of the site and the specifics of the intellectual property itself, acquiring legal protection due to the fact of its creation and not subject to mandatory registration, the prevention and suppression of infringements of copyright and related rights requires the interaction of the site owner and rightholders, and therefore bringing information about the facts violations of rights holders before the owner of the site is a circumstance affecting the latter’s guilt. In this case, the owner of the site is obliged in the event of receiving a written application from the copyright holder on the violation of intellectual rights as a result of placing content on his website in a timely manner to take the necessary and sufficient measures to curb and eliminate the consequences of a violation of intellectual rights. Such measures should exclude the possibility of access to controversial content for any person and ensure the impossibility of posting content of similar content on the site.
findings
The new edition of the Civil Code of the Russian Federation only consolidates the already existing norms and does not create anything new. Moreover, the analysis of the norms of Article 1253 1 suggests that there is no Legislator’s direction to reduce the rights of the site owner / provider. In everyday language, the current state of affairs is preserved: the site owner / provider is liable if he really violates the law (uses stolen content for profit). In addition, it remains its duty to remove licensed content at the request of the copyright holder. In the considered decision exactly that Vkontakt scored a bolt on the request of Gala Records to delete files in the end and it became his fault. At the same time, the court rightly considered that the end users who downloaded them were specifically at fault for intellectual rights, and Vkontakte was guilty only for not deleting them when they politely asked (or not very politely).
Let's start with the new edition of the Civil Code of the Russian Federation , namely, the very resonant article for us.
Article 1253 1. Features of the responsibility of the information mediator
1. The person transmitting the material on the Internet or providing the possibility of placing material on this network - the information intermediary (Internet provider) is responsible for infringing intellectual rights on the Internet on the general grounds provided by this Code, if there is fault, taking into account the peculiarities established in paragraphs 2 and 3 of this article.
2. An information intermediary transmitting material on the Internet shall not be liable for intellectual property infringements resulting from such transfer, subject to the following conditions:
')
1) the information intermediary does not change the specified material after its receipt, except for the changes made to ensure the technological process of material transfer, and
2) the information intermediary did not know and should not have known that the use of a corresponding result of intellectual activity or a means of individualization by the person who initiated the transfer of material containing such a result or means of individualization is illegal.
2. The information intermediary, which provides the possibility of placing materials on the Internet, shall not be liable for intellectual property infringements resulting from the placement of material on the Internet by a third party or upon his instruction, subject to the following conditions:
1) the information mediator did not know and should not have known that the use of the relevant result of intellectual activity or the means of individualization contained in such material is illegal;
2) an information mediator in the event of receiving a written statement from the right holder on the violation of intellectual rights as a result of posting such material on the Internet promptly took necessary and sufficient measures to eliminate the consequences of the violation of intellectual rights provided for by the legislation on information. "
And now let's look at today's law enforcement practice , and specifically on the Decision of the Arbitration Court of St. Petersburg and the Leningrad Region of February 03, 2012 No. A56-57884 / 2010 on the suit “Gala Records” to “V kontakte” because of the songs of the singer Maxim. I quote the key points Solutions:
Based on the clarifications contained in paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of March 26, 2009 No. 5/29 ... to apply to the defendant measures of responsibility for infringement of intellectual rights (recovery of compensation, damages) concerning the presence or absence of guilt of the defendant in violation of the rights of the plaintiff in relation to article 401 of the Civil Code.
According to the legal position of the Supreme Arbitration Court of the Russian Federation set out in Resolution No. 10962/08 of December 23, 2008, on the conditions for applying measures of responsibility to the hosting provider, the courts should take into account the degree of provider involvement in the process of transferring, storing and processing information, the ability to control and change its content. The provider is not responsible for the information transmitted, if he does not initiate its transfer, does not select the recipient of information, does not affect its integrity, and also takes preventive measures to prevent the use of exclusive rights objects without the consent of the copyright holder.
At the same time, there is no evidence that the defendant, as the site administrator, independently recorded audio files containing phonograms of controversial pieces of music into computer memory or added links to previously downloaded audio files to personal pages of users in the case file. In addition, these actions would be contrary to the nature of the social network, which involves filling personal pages by the users themselves.
Based on the above, taking into account the purpose of the information resource and the lack of evidence confirming the implementation (initiation) of downloading (placing) the disputed content directly by the respondent, the court concludes that such content was posted independently by the website users.
Based on the presumption of good faith of users of the site and the specifics of the intellectual property itself, acquiring legal protection due to the fact of its creation and not subject to mandatory registration, the prevention and suppression of infringements of copyright and related rights requires the interaction of the site owner and rightholders, and therefore bringing information about the facts violations of rights holders before the owner of the site is a circumstance affecting the latter’s guilt. In this case, the owner of the site is obliged in the event of receiving a written application from the copyright holder on the violation of intellectual rights as a result of placing content on his website in a timely manner to take the necessary and sufficient measures to curb and eliminate the consequences of a violation of intellectual rights. Such measures should exclude the possibility of access to controversial content for any person and ensure the impossibility of posting content of similar content on the site.
findings
The new edition of the Civil Code of the Russian Federation only consolidates the already existing norms and does not create anything new. Moreover, the analysis of the norms of Article 1253 1 suggests that there is no Legislator’s direction to reduce the rights of the site owner / provider. In everyday language, the current state of affairs is preserved: the site owner / provider is liable if he really violates the law (uses stolen content for profit). In addition, it remains its duty to remove licensed content at the request of the copyright holder. In the considered decision exactly that Vkontakt scored a bolt on the request of Gala Records to delete files in the end and it became his fault. At the same time, the court rightly considered that the end users who downloaded them were specifically at fault for intellectual rights, and Vkontakte was guilty only for not deleting them when they politely asked (or not very politely).
Source: https://habr.com/ru/post/141717/
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