In Russia, it is proposed to introduce blocking of information on the network at the request of the copyright holder
On January 25, 2013, a draft of a remotely reproducing mechanism for deleting and blocking information that takes place in the DMCA was published on the website of the Ministry of Culture.
Under the cat a brief analysis of the provisions of the bill and the absurdities arising from it.
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The draft proposes to add Federal Law No. 149- “On Information, Information Technologies and Information Protection” to Article 15.2. "Restrictions on the transfer of information in case of violation of exclusive rights."
Part 1 of the article states that the right holder has the right to send to the site owner or hosting provider a statement about the violation of his intellectual rights (in this case both exclusive and personal non-property (for example, the author’s right to name, etc.) with illegally posted information. This application must be sent either by mail with the receipt of receipt or by e-mail, but in this case it must be signed by electronic signature.
In the application it is enough for the right holder (1) to specify his personal data, (2) information about the object, intellectual rights, the author (holder of rights) of which he is and (3) the domain name of the site on which the disputed information is located. It can be seen that the right holder is not obliged to confirm the fact that he is the right holder, and is also not obliged to indicate the specific address where the information is posted.
After receiving the message from the copyright holder, the hosting provider must within a day (sic!) (1) inform the site owner about this and (2) notify him of the need to immediately delete the information (3) or take other measures to suspend (block) access to such information and (or) to suspend (block) its distribution. It is noticeable that the deadline clearly does not allow for a proper analysis of the right holder’s application, as well as to take any adequate measures to ascertain whether or not he has rights.
The site owner within a day (sic!) From the moment of receiving information from the hosting provider is obliged to (1) either delete the information (2) or take other measures to suspend (block) access to such information and (or) to suspend (block) its distribution .
In this case, the site owner has the right to send information about the measures taken by the user who posted the information, which in turn within 10 working days from the moment any measures are taken by the site owner has the right to provide him or the hosting provider with his objections to the copyright holder's statement and arguments to the lawful placement information. At the same time, the user is obliged to provide "information sufficient to uniquely identify the specified user." In this case, the user is in the most disadvantageous position, since no one is obliged to inform him about the reasons for deleting or blocking access to information, and generally notify the copyright holder of the application (this is only the site owner’s right, but not his duty).
If after 1 month from the moment the hosting provider or the site owner redirected the user's objections to the copyright holder, the latter did not appeal to the court, then the hosting provider or the site owner has the right to resume access to the information at the user's request.
If the appeal to the court took place, the information is blocked until the court decision. A small concession for all participants in the relationship is then, if the court determines the legality of the placement of information, the right holder is obliged to compensate for the damage caused by the restriction of access.
At the same time, the project does not define the order of sending messages, except for the very first message of the right holder, which implies the possibility of sending messages by e-mail (articles 434, 435 of the Civil Code of the Russian Federation).
Interestingly, sub-clause b of clause 1 of Part 6 of Article 15.2., Regardless of whether the information was deleted or blocked, obliges the hosting provider immediately after receiving information from the copyright holder to assist him in collecting and providing evidence (which, for a moment, is done by inspection report at the notary) by copying and storing illegally placed information while preserving the possibility of its subsequent use, the format in which the information was created, transmitted or received, about The values ​​of the sender and the recipient information and the date and time of its creation or receipt.
Similarly, paragraph 2 of Part 6 of Article 15.2. obliges the owner of the site (domain name administrator) on the basis of a written request from the right holder to provide information about the person who posted the information. In this case, the project does not establish how such a request should be sent. For example, if the registered administrator of a domain name is a legal entity and its contact email is specified in whois, then from the point of view of the Civil Code of the Russian Federation (articles 434, 435), “written request” can be understood as e-mail correspondence. What kind of “information about the person who posted the information” is also not established: whether the person’s nickname or ip is sufficient and the time of placement of information or (assuming that the site is registered under a real name), the maximum possible list of personal data should be disclosed.
This also leads to sad thoughts due to the fact that the flip side of the coin is the implied duty of the site owner to collect information about their users and store it in case of making demands. It can be assumed that if the project passes in the form in which it is presented, then it is this approach that, in most cases, law enforcement agencies and rightholders will be guided by.
One way or another, it is noticeable that lawmakers are trying to shift the burden of finding "villains" onto the shoulders of site administrators and hosting providers, imposing on them the obligation to also form an evidence base for subsequent lawsuits (or administrative or criminal prosecution).
The conclusions are somewhat disappointing:
1. the law actually creates a presumption that the information violates the rights of the right holder;
2. the law actually creates a presumption that the person who submitted the application is the copyright holder, while the copyright holder is only obliged to identify himself as such, but is not obliged to confirm this;
3. The right holder is obliged to point out the “domain name of the site on the Internet, but not the specific address of the placement of information, which in fact puts the implementation of this law at a standstill in cases of, for example, forums or file archives and creates excellent opportunities for abuse;
4. The site owner is in any case obliged to make a decision either to delete information or to restrict access to it;
5. The responsibility for collecting the evidence base and its consolidation rests with the hosting provider, the site owner, as well as the user himself (!). Thus, you can not bother spending money by shifting it to third parties, and then use the information provided by them;
6. in fact, it is possible to speak about the presence of an implied obligation to explicitly or implicitly collect information about users who are placing content;
7. If the right holder does not submit a claim to the court, then access to information is restored, but the project does not provide an answer in case the information has been deleted. Is it recoverable?
8. If the court establishes the legality of placing information, then compensation for damage is paid only if access to it was restricted, but what about if it is deleted?
9. The draft takes into account only “going to court for the protection of its violated rights”, but what if the court determines the absence of an administrative offense in administrative court proceedings? Is the damage compensable?
10. If the right holder did not go to court within a month, he does not lose the right to claim (the general limitation period in accordance with the Civil Code of the Russian Federation is 3 years). Suppose that the copyright holder did not go to court, access to the content was restored. Given that there is still no clear understanding of who is responsible for the content posted on the network, the right holder goes to court to the hosting provider or the site owner (it is easier to get them than the user), which actually makes this law inoperative.
It can be argued that such a mechanism can be used to block unwanted resources and delete information, since there is a presumption of authorship of the copyright holder and the unlawfulness of the posted information, while all other persons are placed in a rigid framework and are obliged to serve the interests of the copyright holder in every possible way .
And for sweetness, it is assumed that the hosting provider and the owner of the hosting service will be held liable in accordance with article 13.29 of the Administrative Code of the Russian Federation with fines for individuals in the amount of 3 to 5 thousand rubles for violation of the above law. The person who posted the information may be subject to administrative liability under Part 7 of Article 7.12. with the imposition of a fine for individuals in the amount of from 1.5 to 2 thousand rubles with confiscation of counterfeit copies, materials and equipment used to reproduce them, and other instruments of the offense.
Under the cat a brief analysis of the provisions of the bill and the absurdities arising from it.
')
The draft proposes to add Federal Law No. 149- “On Information, Information Technologies and Information Protection” to Article 15.2. "Restrictions on the transfer of information in case of violation of exclusive rights."
Part 1 of the article states that the right holder has the right to send to the site owner or hosting provider a statement about the violation of his intellectual rights (in this case both exclusive and personal non-property (for example, the author’s right to name, etc.) with illegally posted information. This application must be sent either by mail with the receipt of receipt or by e-mail, but in this case it must be signed by electronic signature.
In the application it is enough for the right holder (1) to specify his personal data, (2) information about the object, intellectual rights, the author (holder of rights) of which he is and (3) the domain name of the site on which the disputed information is located. It can be seen that the right holder is not obliged to confirm the fact that he is the right holder, and is also not obliged to indicate the specific address where the information is posted.
After receiving the message from the copyright holder, the hosting provider must within a day (sic!) (1) inform the site owner about this and (2) notify him of the need to immediately delete the information (3) or take other measures to suspend (block) access to such information and (or) to suspend (block) its distribution. It is noticeable that the deadline clearly does not allow for a proper analysis of the right holder’s application, as well as to take any adequate measures to ascertain whether or not he has rights.
The site owner within a day (sic!) From the moment of receiving information from the hosting provider is obliged to (1) either delete the information (2) or take other measures to suspend (block) access to such information and (or) to suspend (block) its distribution .
In this case, the site owner has the right to send information about the measures taken by the user who posted the information, which in turn within 10 working days from the moment any measures are taken by the site owner has the right to provide him or the hosting provider with his objections to the copyright holder's statement and arguments to the lawful placement information. At the same time, the user is obliged to provide "information sufficient to uniquely identify the specified user." In this case, the user is in the most disadvantageous position, since no one is obliged to inform him about the reasons for deleting or blocking access to information, and generally notify the copyright holder of the application (this is only the site owner’s right, but not his duty).
If after 1 month from the moment the hosting provider or the site owner redirected the user's objections to the copyright holder, the latter did not appeal to the court, then the hosting provider or the site owner has the right to resume access to the information at the user's request.
If the appeal to the court took place, the information is blocked until the court decision. A small concession for all participants in the relationship is then, if the court determines the legality of the placement of information, the right holder is obliged to compensate for the damage caused by the restriction of access.
At the same time, the project does not define the order of sending messages, except for the very first message of the right holder, which implies the possibility of sending messages by e-mail (articles 434, 435 of the Civil Code of the Russian Federation).
Interestingly, sub-clause b of clause 1 of Part 6 of Article 15.2., Regardless of whether the information was deleted or blocked, obliges the hosting provider immediately after receiving information from the copyright holder to assist him in collecting and providing evidence (which, for a moment, is done by inspection report at the notary) by copying and storing illegally placed information while preserving the possibility of its subsequent use, the format in which the information was created, transmitted or received, about The values ​​of the sender and the recipient information and the date and time of its creation or receipt.
Similarly, paragraph 2 of Part 6 of Article 15.2. obliges the owner of the site (domain name administrator) on the basis of a written request from the right holder to provide information about the person who posted the information. In this case, the project does not establish how such a request should be sent. For example, if the registered administrator of a domain name is a legal entity and its contact email is specified in whois, then from the point of view of the Civil Code of the Russian Federation (articles 434, 435), “written request” can be understood as e-mail correspondence. What kind of “information about the person who posted the information” is also not established: whether the person’s nickname or ip is sufficient and the time of placement of information or (assuming that the site is registered under a real name), the maximum possible list of personal data should be disclosed.
This also leads to sad thoughts due to the fact that the flip side of the coin is the implied duty of the site owner to collect information about their users and store it in case of making demands. It can be assumed that if the project passes in the form in which it is presented, then it is this approach that, in most cases, law enforcement agencies and rightholders will be guided by.
One way or another, it is noticeable that lawmakers are trying to shift the burden of finding "villains" onto the shoulders of site administrators and hosting providers, imposing on them the obligation to also form an evidence base for subsequent lawsuits (or administrative or criminal prosecution).
The conclusions are somewhat disappointing:
1. the law actually creates a presumption that the information violates the rights of the right holder;
2. the law actually creates a presumption that the person who submitted the application is the copyright holder, while the copyright holder is only obliged to identify himself as such, but is not obliged to confirm this;
3. The right holder is obliged to point out the “domain name of the site on the Internet, but not the specific address of the placement of information, which in fact puts the implementation of this law at a standstill in cases of, for example, forums or file archives and creates excellent opportunities for abuse;
4. The site owner is in any case obliged to make a decision either to delete information or to restrict access to it;
5. The responsibility for collecting the evidence base and its consolidation rests with the hosting provider, the site owner, as well as the user himself (!). Thus, you can not bother spending money by shifting it to third parties, and then use the information provided by them;
6. in fact, it is possible to speak about the presence of an implied obligation to explicitly or implicitly collect information about users who are placing content;
7. If the right holder does not submit a claim to the court, then access to information is restored, but the project does not provide an answer in case the information has been deleted. Is it recoverable?
8. If the court establishes the legality of placing information, then compensation for damage is paid only if access to it was restricted, but what about if it is deleted?
9. The draft takes into account only “going to court for the protection of its violated rights”, but what if the court determines the absence of an administrative offense in administrative court proceedings? Is the damage compensable?
10. If the right holder did not go to court within a month, he does not lose the right to claim (the general limitation period in accordance with the Civil Code of the Russian Federation is 3 years). Suppose that the copyright holder did not go to court, access to the content was restored. Given that there is still no clear understanding of who is responsible for the content posted on the network, the right holder goes to court to the hosting provider or the site owner (it is easier to get them than the user), which actually makes this law inoperative.
It can be argued that such a mechanism can be used to block unwanted resources and delete information, since there is a presumption of authorship of the copyright holder and the unlawfulness of the posted information, while all other persons are placed in a rigid framework and are obliged to serve the interests of the copyright holder in every possible way .
And for sweetness, it is assumed that the hosting provider and the owner of the hosting service will be held liable in accordance with article 13.29 of the Administrative Code of the Russian Federation with fines for individuals in the amount of 3 to 5 thousand rubles for violation of the above law. The person who posted the information may be subject to administrative liability under Part 7 of Article 7.12. with the imposition of a fine for individuals in the amount of from 1.5 to 2 thousand rubles with confiscation of counterfeit copies, materials and equipment used to reproduce them, and other instruments of the offense.
Source: https://habr.com/ru/post/167549/
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