Again on the use of photos from the Internet. Supreme Court allowed?

On April 25, the Board of Economic Disputes of the Supreme Court of the Russian Federation adopted a definition in which it recognized that photographs taken from the Internet can in some cases be used on sites without the consent of the copyright holders and without paying them remuneration. “Well, now it’s finally possible to take other people's pictures, the Supreme Court allowed!”, Such statements began to appear on professional forums and in comments. Here it is necessary to make an important reservation: only in some cases, and quite limited. What specifically - we understand this material.

Brief background

The name of the popular blogger Ilya Varlamov is well known among Russian Internet users. Those who are in the subject know Varlamov not only as a blogger, but also as a regular participant in the trials (of course, he himself does not go to the courts, but his representative). From time to time, one or the other online publication places on its website photos taken by Varlamov and published in his personal blog. Naturally, the pictures are borrowed without the consent of the latter. Which is the basis for filing lawsuits.

Most of these cases are invariably resolved in favor of the claimant: the courts charge large amounts of money from the editors and site owners in favor of Varlamov, usually estimated at several hundreds of thousands of rubles - regardless of whether the borrowed images indicated Varlamov’s authorship and whether a source.

However, in the case on the claim of Ilya Varlamov to the administration of the site Archi.Ru, at first something went wrong. The Arbitration Court of the city of Moscow by a decision of January 26, 2016 refused the blogger to collect compensation. The court noted, in particular, that his photographs were used on the archi.ru portal dedicated to architecture and urban planning in an informational review of thematic blogs. How can you write a blog review without giving examples of what these blogs are about? At the same time, the authors of the review did not assign authorship to themselves, but indicated Ilya Varlamov as the author and put active references to the original source.

True, the court of appeal, and after him - the Court for Intellectual Property Rights has already taken the position of a blogger, having canceled the decision of the Moscow Arbitration Court and charged 220,000 rubles from the Archi.Ru administration.

So the budget of the blogger-photographer would have been replenished for another couple of hundred thousand rubles, if the economic court of the Supreme Court had not become interested in this dispute. But first - a little about the legal regulation of the issue.

Legal regulation of the use of photographs

The legal basis for the use of other people's works, including photographs, is part 4 of the Civil Code (GC) of the Russian Federation on copyright and patent law. By “use” is here meant, in particular, the reproduction of photographs on other resources.

According to the general rule established in Art. 1229 and 1270 of the Civil Code of the Russian Federation, the author or other rightholder has the exclusive right to use the work (including works of photographic art). It is the right holder who is free to allow or prohibit other persons to use the work, and the absence of a ban is not considered consent. It follows from this that the work can be used, incl. reproduced only with the consent of the copyright holder.

It is to this general rule that blogger Varlamov appeals when he is suing those who copied his photos on his resources without permission.

However, there are exceptions to this rule - cases of so-called. "Free use" of works. This includes, in particular, free use for personal purposes (Art. 1273 GK), free use by archives, libraries and educational institutions (Art. 1275 GK), free use for informational, scientific, educational or cultural purposes (Art. 1274 GK) .
The last of the cases mentioned includes the possibility of “citing works” (subclause 1 of clause 1 of article 1274 of the Civil Code) - it is of particular interest to us. Quoting is allowed without the consent of the author, copyright holder and without paying him remuneration under certain conditions: it is necessary to indicate authorship and reference to the source, the purpose of the quotation is informational, polemical, scientific, critical, educational, and also the goal may be to reveal the creative intent of the author. At the same time, the volume of quotations should be justified by the purpose of quoting.

It was precisely to “quoting” photos of Varlamov that the respondent insisted on Archi.Ru. But his position was perceived by the courts with varying success: the court of first instance stood on his side, and then the Supreme Court, while the appeal and cassation courts did not agree with this.

The fact is that, speaking of quoting, the Civil Code uses the expression “quoting works”, i.e. From a literal interpretation it follows that one can “quote” any work - even a literary one, even a graphic one, even a musical one.

But the position of the majority of Russian courts, in particular, the Court of Intellectual Property Rights, until recently, consisted in a narrow interpretation of the term “citation”. It was considered that only texts could be “quoted”, i.e. literary works, but not photos . In support of this position, the Court for Intellectual Property Rights even turned to the dictionary of V.I. Dahl, which contains the meaning of the words “quote”, “quote”.

In addition to citations, art. 1274 of the Civil Code of the Russian Federation names other possible cases of free use of works. These include, for example, the use of works as illustrations in educational materials, reproduction of works on current economic, social and religious issues, etc. More details about the cases of free use of photos can be found in this material .

Definition of the Supreme Court of the Russian Federation of April 25, 2017 : a brief analysis

In short, the Supreme Court said: "Quote" photos still can be. Citation can be made not only in relation to literary works (as the Intellectual Property Court has previously considered), but also in relation to any other works, including photographic images.

But this does not mean that now any use of other people's photos can be called "quoting". The fact that the use of photography in each particular case is precisely free “citing” (and, for example, not an illustration, the legal regime of which differs from the citation regime), has to be proved to the respondent every time.

Recall the specific conditions in which the photographs were reproduced in the case under consideration. It was a weekly review of thematic blogs on the thematic portal, which aims to inform the readers of this portal about what blogs they can look at. As stated in the Definition, “the genre and nature of the presentation of the material ... corresponds to the informational goals, as the authors of the review works presented information on the latest at the time of publication reviews of the works of Internet bloggers, presenting their audience with an overview of relevant information in the field of architecture, urban planning and heritage protection.”

In other words, citing in the material devoted to blogs, quotations from these blogs can be recognized as free quoting of blogs (including pictures). But if the material was not devoted to blogs, but, for example, architectural directions, travel, or something else, then using “someone’s photos” would not be called “quoting”. “To quote” a photograph is possible only when the material in which the quotation is used is devoted to discussing or criticizing this particular photograph (or the blog that this photograph contains) or disclosing the creative intent of its author.

In addition, the Supreme Court recalled the four mandatory citation conditions stipulated by the Civil Code of the Russian Federation, and found that all of these conditions were respected in the dispute under review.

Here are the conditions:

• Mandatory indication of the author;
• mandatory indication of the source of borrowing;
• the purpose is informational, scientific, educational or cultural (in the case cited the Court agreed that there was an informational goal);
• the volume should be justified by the citation goal (the Court found that in the 14 weekly reviews, Archi.Ru used only 22 photos of Varlamov from almost 600 photos posted on his personal blog, the amount of phototsytat is insignificant compared to the total amount of reviews).

Finally, the Supreme Court recalled that quoting is possible only for those works that have become legally accessible to everyone. This condition has also been met.

P.S. Early to rejoice?

A similar situation with exclamations in the spirit of “Finally, the court allowed the use of other people's photos!” Developed in September 2016, when the Intellectual Property Court overturned the decision of the Arbitration Court of the Sverdlovsk Region to recover compensation from Ilya Varlamov for the network edition 66.RU. Then this event was widely reported in the press and in the wake of the euphoria it seemed to everyone that now Varlamov’s lawsuits came to an end, and finally you can use anything and everything from the Internet.

But the announced precedent, which, as promised, should "change the work of all media," did not take place. The case went for a retrial to the Arbitration Court of the Sverdlovsk Region, which on January 20, 2017 ... again ordered 66.RU to pay Varlamov compensation. Of course, such a turn was no longer so raspiararny as the previous "victorious" decision. At the time of publication of this article, the online edition should pay the blogger 275,000 rubles . The court of appeal did not make a decision (the hearing is scheduled for May 18, 2017).

Similarly, in the current situation. No need to build the illusions of permissiveness and expect that now "everything will be new." Photographs, like other works, are still subject to copyright (we emphasize any photographs, not just highly artistic ones), and the law still protects the interests of the copyright holders.

References:
- Civil Code of the Russian Federation, part 4
- Case 40-142345 / 2015 (Card file of arbitration cases)
- Case A60-54898 / 2015 (Card file of arbitration cases)
- Definition of the Supreme Court of the Russian Federation dated April 25, 2017 No. 305-16-18302
- Using other people's photos. How not to violate copyright. Part 1
- Is it possible to "quote" a photographic image? It turns out you can not ...