The Supreme Court of the Russian Federation recognized that the Internet is not a place open to the public.
The law (namely, clause 1 of Article 1276 of the Civil Code of the Russian Federation) establishes cases when free use of images (including photographs) in places open for free visits is allowed.
"Free use" in this case implies the use of works without the consent of the copyright holder and without paying remuneration. Free use is allowed if the image: (a) is permanently in a place open to the public, (b) is not the main object of use, and (c) is used for non-commercial purposes.
In judicial practice, the question always arose whether the Internet was “a place open to the public”. Responding to it, more recently, the courts came to the opposite conclusions.
Thus, this issue became acute in case No. 40-115248 / 12 on the claim of blogger Dmitry Chistoprudov against Vympel-Communications OJSC (site administrator www.e1.ru ). The plaintiff claimed a violation of the exclusive right to his photograph “Country plots”, which was illegally used on the defendant’s website. Solving the case, the courts referred to the fact that the blogger’s page was given unlimited access, and the respondent indicated the author’s name and source of borrowing when using the photo. Having taken into account these circumstances, the courts applied, among other things, article 1276 of the Civil Code of the Russian Federation and denied the lawsuit.
The courts came up with similar conclusions about the legitimate use of photographs in disputes about canceling the registration of candidates in elections, where the applicants referred to the candidates' failure to comply with the requirement of mandatory compliance with the laws on intellectual property in campaign materials (definition of the Supreme Court of the Russian Federation of September 22, 2014 No. 117-APG14- 2, the appeal determination of the Krasnodar Regional Court of September 13, 2014 in case No. 33-20552 / 2014).
Both before and after the aforementioned judicial acts were issued, there was a parallel judicial practice, according to which “the Internet cannot be a place open to public access” (the appellate definition of the Arkhangelsk Regional Court of 27.08.2013 No. 33-5394, the definition of the Supreme Courts of the Russian Federation of 05/19/2015 No. 84-15-1, of 05/26/2015 No. 84-15-4).
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The last two definitions and the key conclusion from them were included in the Review of judicial practice, approved on September 23 by the Presidium of the Supreme Court of the Russian Federation (point 13 of the Review).
The choice by the Supreme Court of the Russian Federation of the described interpretation of article 1276 of the Civil Code of the Russian Federation seems to be correct. The title of the article is really oriented not to the Internet, but to public places (streets, permanent exhibitions, museums): in paragraph 1 of the article it is about photographs and works of fine art, in paragraph 2 - about works of architecture, town planning, landscape gardening art. In this case, the legislator does not name, for example, other objects peculiar to the Web: for example, movies or musical works. Not to mention the fact that the free use of works of architecture is focused precisely on instances of their location in public places: for example, that the copyright holder of an architectural project does not make claims against the manufacturer of postcards depicting an already constructed building.
The position of the Supreme Court of the Russian Federation also speaks in favor of the fact that other articles that mention “a place open to free visits” also do not imply the Internet. For example, in places open to free attendance, it is forbidden to record movies when they are performed publicly (sub-clause 5 of clause 1 of article 1273 of the Civil Code of the Russian Federation) - here we are obviously talking about cinemas, streets, etc. In addition, according to the text of the Civil Code of the Russian Federation, “a place open to free visits” is usually referred to along with “a place where there are a significant number of persons who do not belong to the ordinary family circle”. By making such a division, the legislator clearly meant “physical” places (buildings, streets, rooms, apartments), rather than “virtual” ones.
Thus, despite the fact that the Internet is a publicly accessible network, it is incorrect to apply the same rules as for a place open to free visits: the specific rules contained in the RF Civil Code for such a place are clearly not designed for their use relationships.
Those who deal with Internet content should consider: posting images / photos on the Internet does not mean that such objects can be used freely under the terms of article 1276 of the Civil Code of the Russian Federation (that is, for non-commercial purposes and not as the main object of use). It is especially important that clarifications of the Supreme Court of the Russian Federation be taken into account by users in order not to become addressees of claims from the right holders, whose positions in potential litigations became stronger with the appearance of clarifications.
The foregoing, however, does not mean that the free use of works has completely disappeared from the Internet: it remains, for example, in certain cases of using works for informational, scientific, educational or cultural purposes (article 1274 of the Civil Code of the Russian Federation).
"Free use" in this case implies the use of works without the consent of the copyright holder and without paying remuneration. Free use is allowed if the image: (a) is permanently in a place open to the public, (b) is not the main object of use, and (c) is used for non-commercial purposes.
In judicial practice, the question always arose whether the Internet was “a place open to the public”. Responding to it, more recently, the courts came to the opposite conclusions.
Thus, this issue became acute in case No. 40-115248 / 12 on the claim of blogger Dmitry Chistoprudov against Vympel-Communications OJSC (site administrator www.e1.ru ). The plaintiff claimed a violation of the exclusive right to his photograph “Country plots”, which was illegally used on the defendant’s website. Solving the case, the courts referred to the fact that the blogger’s page was given unlimited access, and the respondent indicated the author’s name and source of borrowing when using the photo. Having taken into account these circumstances, the courts applied, among other things, article 1276 of the Civil Code of the Russian Federation and denied the lawsuit.
The courts came up with similar conclusions about the legitimate use of photographs in disputes about canceling the registration of candidates in elections, where the applicants referred to the candidates' failure to comply with the requirement of mandatory compliance with the laws on intellectual property in campaign materials (definition of the Supreme Court of the Russian Federation of September 22, 2014 No. 117-APG14- 2, the appeal determination of the Krasnodar Regional Court of September 13, 2014 in case No. 33-20552 / 2014).
Both before and after the aforementioned judicial acts were issued, there was a parallel judicial practice, according to which “the Internet cannot be a place open to public access” (the appellate definition of the Arkhangelsk Regional Court of 27.08.2013 No. 33-5394, the definition of the Supreme Courts of the Russian Federation of 05/19/2015 No. 84-15-1, of 05/26/2015 No. 84-15-4).
')
The last two definitions and the key conclusion from them were included in the Review of judicial practice, approved on September 23 by the Presidium of the Supreme Court of the Russian Federation (point 13 of the Review).
The choice by the Supreme Court of the Russian Federation of the described interpretation of article 1276 of the Civil Code of the Russian Federation seems to be correct. The title of the article is really oriented not to the Internet, but to public places (streets, permanent exhibitions, museums): in paragraph 1 of the article it is about photographs and works of fine art, in paragraph 2 - about works of architecture, town planning, landscape gardening art. In this case, the legislator does not name, for example, other objects peculiar to the Web: for example, movies or musical works. Not to mention the fact that the free use of works of architecture is focused precisely on instances of their location in public places: for example, that the copyright holder of an architectural project does not make claims against the manufacturer of postcards depicting an already constructed building.
The position of the Supreme Court of the Russian Federation also speaks in favor of the fact that other articles that mention “a place open to free visits” also do not imply the Internet. For example, in places open to free attendance, it is forbidden to record movies when they are performed publicly (sub-clause 5 of clause 1 of article 1273 of the Civil Code of the Russian Federation) - here we are obviously talking about cinemas, streets, etc. In addition, according to the text of the Civil Code of the Russian Federation, “a place open to free visits” is usually referred to along with “a place where there are a significant number of persons who do not belong to the ordinary family circle”. By making such a division, the legislator clearly meant “physical” places (buildings, streets, rooms, apartments), rather than “virtual” ones.
Thus, despite the fact that the Internet is a publicly accessible network, it is incorrect to apply the same rules as for a place open to free visits: the specific rules contained in the RF Civil Code for such a place are clearly not designed for their use relationships.
Those who deal with Internet content should consider: posting images / photos on the Internet does not mean that such objects can be used freely under the terms of article 1276 of the Civil Code of the Russian Federation (that is, for non-commercial purposes and not as the main object of use). It is especially important that clarifications of the Supreme Court of the Russian Federation be taken into account by users in order not to become addressees of claims from the right holders, whose positions in potential litigations became stronger with the appearance of clarifications.
The foregoing, however, does not mean that the free use of works has completely disappeared from the Internet: it remains, for example, in certain cases of using works for informational, scientific, educational or cultural purposes (article 1274 of the Civil Code of the Russian Federation).
Source: https://habr.com/ru/post/295018/
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