The draft Federal Law No. 292521-6 “ On Amendments to Legislative Acts of the Russian Federation on the Protection of Intellectual Rights in Information and Telecommunication Networks ” submitted to the State Duma, which we wrote on Friday, was approved by the relevant committees of the State Duma of the Russian Federation as soon as possible. recommended for adoption in the first reading, which will be held this Friday, June 14.

Unfortunately, the speed of consideration of the draft and the lack of reaction of the legislators to public and expert discussion suggest that it is likely to become law soon. Making a choice between very bad and bad, we propose the concept of amendments to this bill, which can reduce the damage to the development of the Internet in Russia (while reiterating the need to develop an alternative concept of regulating copyright protection).

Understanding the importance of protecting copyright and related rights on the Internet, we also believe that such a complex social organism, like the Internet, requires adequate regulatory mechanisms that do not undermine the basics of its functioning, do not entail irreparable damage to the infrastructure and do not solve the commercial problems of some participants in turnover due to other bona fide participants in the turnover and interests of the whole society.
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Our comments on the project and proposals on the minimum necessary revisions that we will try to bring to the attention of the State Duma and all other interested parties are as follows.

Comments on the draft Federal Law

1. The project provides for a procedure of complete blocking of sites , which allegedly may contain material that violates exclusive rights, at the request of a specific copyright holder. This leads to a massive and systematic violation of the rights of other bona fide right holders, informational intermediaries and users, especially given that such measures are used before filing a claim, the court establishes a violation and, as a rule, apply to the site as a whole , and not just to the improperly posted material. . The inadequacy of this practice was widely discussed when the SOPA (StopOnlinePiracyAct) law in the United States was adopted regarding the protection of intellectual property on the Internet, which was rejected due to a violation of fundamental rights.
   
   In addition, the law in Spain, which entered into force on March 1, 2012 (the so-called “LeySinde” is the only known effective law using a similar mechanism), for the year of operation showed its inconsistency in ensuring the actual protection of rights of rights holders and resulted only in a massive outflow of website owners from Spanish hosting.
   
   
2. There is no requirement in the draft at any stage of the procedure to indicate the full link ( URL ), as well as the description of the material that allegedly violates exclusive rights.
   
   This imposes on the information mediator, who is only informed of the title of the work and the name of the right holder, the unbearable burden of pre-moderation and monitoring of the entire resource, which is technically impossible in many cases, and also obliges the mediator to decide whether or not there is a violation in a particular case, which is usually , only the court has the right to do.
   
   
3. Despite the fact that the project proposes to introduce a new widely discussed earlier article 1253.1 of the Civil Code of the Russian Federation concerning the responsibility of information intermediaries, the project does not provide for the obligation of the right holder to notify the information intermediary of a potential violation.
   
   On the contrary, a parallel administrative and judicial blocking of sites is created, the owners of which will receive information about the violation already from the execution list or notify the authority authorized to make decisions about blocking and will have to respond within extremely tight deadlines without any opportunity to request additional information or challenge the decision. This practice will not allow to put forward reasonable objections to the legality of the use of the work and will lead to the infringement of public interests in the sphere of free exchange of information, the development of science and art, and also creates prerequisites for the unreasonable expansion of copyright protection for objects in the public domain.
   
   At the same time, the existing practice shows that bona fide informational intermediaries (the largest sites on the Runet) already have procedures for responding to notifications of rights holders.
   
   
4. The project provides for changes to the institute of preliminary interim measures, as well as rules on jurisdiction and jurisdiction of disputes, which clearly contradict the nature of these institutions , violate the right of access to justice and create tremendous opportunities for abuse of rights holders.
   
   

Minimally necessary edits aimed at reducing damage to the development of the Internet in Russia

1. The law is aimed at protecting private interests, therefore, the complete blocking of sites by IP address should not be applied in cases where this measure may affect other bona fide sites . In all cases, preference should be given to blocking a specific material only by a direct link (“page index on the Internet”).
   
   Site blocking should be applied only in case of difficulty in enforcing a judicial act against a potential offender .
   When deciding on blocking, it is necessary to take into account the approaches developed in the practice of arbitration courts to determining the guilt of an information broker in violation of exclusive rights, including the existence of requirements in the site rules for users to respect third-party rights, the right to block any infringing material, the existence of income from the violation, having a reasonable notification procedure and others.
   It is necessary to provide for a quick procedure for automatic unblocking of sites, including in the event that the right holder does not file a lawsuit about the violation within the time specified by the court.
   
   
2. Accepting of interim measures should be taken for consideration and satisfaction by the court only if the right holder sent a notice of violation to the relevant information intermediary, and the latter did not take measures to block or restrict access within a reasonable period of time.
   
   
3. A statement of the right holder of the alleged violation must contain the following information:
   • full name and address of the copyright holder;
   • an indication of the full reference, as well as a description, allowing to identify the material allegedly violating the exclusive right of the copyright holder;
   • indication of the material posted legally (if available);
   • justification of the violation (lack of the right to free use in a particular case, etc.).
   
   In addition, the copyright holder should be obliged to follow a reasonable notification procedure as provided by the hosting provider and / or the site owner .
   
   
4. Within the framework of all other procedures stipulated by the project, it is necessary to define a full reference to a specific potential violation of exclusive rights, as well as to identify the infringing material both in the court ruling, and in the writ of execution and the notification to the authorized body . It is unacceptable to send notices containing a general indication that an informational intermediary has been violated on the website. In many cases, taking into account the specifics of information exchange on the Internet, such a requirement is impracticable for information intermediaries.
   
   
5. In cases of preliminary interim measures, special jurisdiction of arbitration courts should be provided for and rules on preliminary interim measures provided for by the APC of the RF should be applied . It is necessary to provide clear requirements for the court to decide on the adoption of interim measures, the writ of execution and the notification of the authorized body, so that preliminary interim measures are imposed only on hosting providers and site owners and not taken on other participants who in many cases cannot even perform.

We oppose these changes and consider them unacceptable and capable of significantly slowing down the development of the Internet in Russia. Below is our detailed position on all proposed changes.

1. In conclusion, the draft Committee on Culture of the State Duma is proposed to expand the scope of the law to include search engines and other participants , which is unacceptable. The current edition of civil law provisions, as well as the practice of their application by the courts, does not provide for the possibility of bringing to liability for infringement of exclusive rights when linking, both by search engines and site administrators and users .
   
   Preliminary monitoring or blocking of links in the search, as well as interference with ranking algorithms on the basis of information about which resources potentially violate exclusive rights and which place objects legally, is technically impractical and will lead to a significant deterioration in the quality of service .
   
   
2. The proposed introduction of an additional out-of-court procedure for blocking websites through the site registry mechanism containing information whose dissemination is prohibited would entail a massive and systematic violation of the rights of bona-fide turnover participants, as well as a violation of the ban on the inadmissibility of arbitrary interference in private affairs ( Clause 1, Article. 1 of the Civil Code of the Russian Federation), requirements for restricting rights only to the extent necessary to protect the rights and legitimate interests of other persons (para. 2 Clause 2 of Article 1 of the Civil Code of the Russian Federation and Part 3 of Article 55 of the Constitution of the Russian Federation), the right to freedom of entrepreneurial and other economic activities (Part 1 of Article 34 of the Constitution of the Russian Federation), the right to freely seek, receive, transmit, produce and distribute information in any legal way (clause 4 of article 29 of the Constitution of the Russian Federation) and the right of access to cultural property (paragraph 2 of article 44 of the Constitution of the Russian Federation). In this regard, it is impossible to justify the complete blocking of the site for the only violation of the exclusive rights of a particular rightholder, which is not even recognized by a court decision, if there are hundreds of millions of other legally placed objects on it.
   Moreover, this proposal completely ignores the private nature of the relations in question, the provisions of paragraph 1 of Art. 9 of the Civil Code, providing that civil rights are exercised at the discretion of their owners, and the provisions of paragraph 1 of Art. 1 of the Civil Code of the Russian Federation, basing civil law regulation on judicial protection of rights.
   
   
3. The conclusion of the Committee on Culture proposes to expand the scope of the locking mechanism provided for by the current project, extending it to “books, articles, photos and other objects of copyright” . As we have already pointed out, the complete website blocking procedure itself is an inadequate and unacceptable measure of the protection of the exclusive rights of a particular copyright holder.
   
   However, further expansion of copyright, in respect of which it is proposed to use such a mechanism, beyond the limits of audiovisual works and phonograms, will completely exclude the use of rules on free use and restriction of exclusive rights for objects placed on the Internet, will lead to an actual expansion of the scope of copyright against neohranosposobnyh objects in conflict with the law (it is quite possible to imagine the use of the lock for the playback on the frag site cient literary work or his name in the recall), and, ultimately, cause enormous damage to society, the free exchange of information, freedom of expression, other fundamental rights and the development of science and art.
   
   
4. The Committee on Culture also proposes to provide administrative responsibility for violation of procedures related to blocking sites not only for those participants in a relationship for whom civil liability for a violation is possible (hosting provider or site owner), but also for those who actually use protected objects are not exercised and civil liability under the existing regulation cannot be brought (for example, search engines).
   
   The proposed establishment of administrative responsibility for any violation of the procedure for restricting access to information, especially in the absence and civil liability, is based on a misunderstanding of the nature of administrative responsibility and an arbitrary definition of relations that may be subject to an administrative offense. As a general rule, administrative responsibility is established for violations in the sphere of organizational and governmental relations, within the framework of which non-compliance with the prescription of a state body, the procedure for obtaining special permission or other rules and procedures within public law relations, in which all members of society are interested, occurs. For example, the responsibility for illegal use of a trademark, established by Article 14.10 of the Administrative Code, occurs precisely in the case of the production of counterfeit goods (the danger of which, for example, is most obvious in the case of counterfeit medicines of well-known manufacturers), but not in the parallel import of goods produced by the right holders in another jurisdiction for which comes only civil liability.
   
   In the proposed form, administrative responsibility, in essence, is a prohibitive mechanism for the work of a wide range of information intermediaries, since it creates unreasonably high risks for doing business in this area in Russia.