Copyright. Results of 2014. World and Russian trends

Today, on the 2015th anniversary of the birth of Jesus of Nazareth, I would like to recall the “miracle of five loaves and two small fishes” described in the Gospel of John. According to the tribute, taking bread and fish, looking up to heaven, Jesus gave thanks, then broke the bread and gave food to the disciples, and they gave it to the people. Thus, in essence, Jesus Christ violated the exclusive right of the Creator to the objects of the material world, feeding the hungry crowd with multiplied food. Obviously, in the 21st century, the Internet and p2p technologies can perform the miracle created by the Savior once, having satisfied the hunger for millions of people all over the planet, striving for the achievements of science and culture by means of their computers and smartphones. But in spite of the tremendous power that exists in the global network technology, there are a lot of people who want to explode the Internet on Calvary, in order to save that monopoly power over the works once granted by the Berne Convention in the form of the exclusive right to dispose of copyright content.

At the beginning of 2014, we announced that it was time to change copyright . Perhaps the whole world agrees with this, trying in one way or another to change the legislation on copyright that is lagging behind public relations. However, by the end of 2014, the laws governing “copyright” remained as imperfect as they were in 2013. Throughout the year, many countries tried to patch the holes of their copyright laws in order to at least somehow decide their own problems at the dawn of the heyday of the digital era, caused by the lagging of legal norms from the rapidly developing online services and file sharing technologies. It all worked out differently. This review presents the main laws, bills and judicial precedents from around the world that allow us to understand in what direction media lobbyists, legislators and courts will move in solving difficult issues related to the consumption, distribution, processing of copyright works in the global network The Internet.

EUROPE

In the UK , a country in which laws on the rights of authors and publishers first appeared, realizing the need for copyright reform, over the past decade, issues related to the enforcement of copyright laws in the digital environment have been extensively studied. However, despite this, a large number of recommendations from the last study were never taken into account. Nevertheless, they were reflected in the new textbooks on copyright as a legal doctrine, and some provisions of the Copyright Act of Great Britain were nevertheless modified and entered into force on June 1, 2014. These include provisions facilitating the use of copyrighted works. , students, researchers, teachers, libraries and people with disabilities.
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In the meantime, amendments to Spanish copyright law (Ley De Propiedad Intelectual), which should take effect from January 2015, turned out to be much less liberal. They criminalize information brokers for refusing to delete links to copyrighted content. In addition, the law has seriously hit news aggregators, which are obliged to pay royalties for the use of information fragments of works, the rights to which belong to third parties, along with links to such content. Even the reasonable arguments of experts did not help that right holders and publishers would lose more on traffic because of their greedy desire to get a portion of Google’s revenue. Let me remind you that such provisions have already been contained in the scandalous laws of SOPA and PIPA, which at one time failed in the United States under the pressure of the wide public. The predictable result of the adoption of a rash law was the closure of the Spanish version of Google News .

And in neighboring Italy , despite widespread public debate, as well as serious opposition from the scientific legal community and civic activists, the Italian counterpart of Roskomnadzor (AGCOM) approved its regulatory mechanism to ensure copyright protection on the network. The outgoing chairman of the authorized body a few days before the new manager took office, hastily approved the procedure for regulating the author's content on the network. The new rules, which entered into force on March 31, 2014, allow AGCOM to administratively influence information intermediaries in connection with copyright infringement. According to the adopted procedure, the right holders have the right to file complaints of copyright infringement on the network through the online form on the AGCOM website. This mechanism does not provide for the accountability of the users who consume pirated content, and the fulfillment by them of a number of legally defined duties. It is aimed at OSP (service providers), as well as those who uploaded the controversial works into the network and website operators that contain such content. The persons concerned are informed that the administrative procedure has been instituted against them. After that, they are obliged to remove or block access to content posted in violation of copyright. If the person who received the notice does not agree with the request of the person who has declared his rights, he is obliged to send a counter notification within 5 days from the moment of receiving the notice from AGCOM (other terms may apply if AGCOM considers the matter particularly difficult). If the expert group at AGCOM concludes that copyright infringement took place, and the party to which the notification was sent ignored the requirement to remove or block the material, while not sending counter-notification, AGCOM is authorized to take the following measures to further prevent the violation:
1. If the website on which the violation is completely hosted on a server in Italy, the hosting provider will be ordered to remove content that infringes copyrights, and in the event of a massive copyright infringement on the website, it may be ordered to restrict access to the entire site with counterfeit works, instead of point deletion;
2. In the event that the website on which the violation is completely hosted on a server outside of Italy, the ISP will be instructed to restrict access to such a website;
3. When accessing content or a website is restricted, information intermediaries (including hosting providers and ISPs) are obliged to redirect the user who accessed the blocked page or website to the information page specified in accordance with the AGCOM instructions.

In fact, the administrative procedure for responding to copyright infringement in the digital space presented by AGCOM is the first and only one of its kind in Europe. This is a matter of concern for many human rights defenders in Italy for several reasons. First of all, the constitutionality of such an approach is in doubt. Italian lawyers have repeatedly noted that legislative decree 44/10 of 03/15/2010 can not impose on AGCOM such a degree of enforcement powers that can violate the constitutional rights of users. According to the criticism inside Italy, AGCOM tries to apply the rules, which, apparently, it does not have the right to apply, and gives itself powers that can not be delegated to the executive body. Only the Parliament has the right to adopt new regulations that can affect the basic rights of citizens, regulated by international conventions and the Constitution of the country.

At the same time, AGCOM de facto deprives users of the right to judicial review of disputes related to copyright infringement on the network. Undoubtedly, for rightholders, the more preferable way to protect their rights is to initiate administrative procedures using AGCOM, than to file lawsuits in court to obtain legal protection. Despite the fact that the adopted procedure provides that all administrative procedures are terminated if any of the parties involved initiate proceedings in court, it does not seem that service providers and site owners would apply to court themselves. In this regard, users are deprived of the possibility of observing the balance of “opposed fundamental rights”, to which the European Court of Justice has drawn attention in the case concerning the claim of the copyright holder to IS P about blocking the kino.to website. According to this decision, measures to block the site should be proportionate, and such actions should not violate the norms of European law.

Currently, the Consumers Association and a number of other organizations dispute the approved administrative procedure for the work of AGCOM in the administrative tribunal and raise a question before the Constitutional Court on the legality of such an approach.

Awareness of the need to reform copyright laws came as a whole to the European Union , which, by March 5, 2014, collected the opinions of users and experts regarding changes to some provisions of union legislation on copyright that restricted the rights of citizens in the information age. As a result of lengthy public consultations, a substantive report was prepared on the most significant socio-economic problems in the application of copyright law. However, despite such a positive in-depth study of the problem, initiated by the European Commission, some official documents were merged into the network, from which it follows that measures taken in the near future in the EU will be directed not at liberalizing current copyright legislation, but at stricter civil law regulation. legal circulation of content in the network. According to these proposals, emphasis is placed on enhancing the responsibility of information intermediaries, as well as on the distribution of user content (UGC) through licensing, instead of a more appropriate method based on extending the legal grounds for restricting the protection of exclusive rights ( fair use ).

It would seem that all regulation of copyright comes from media lobbyists and legislators who by all means want to preserve the unshakable exclusive monopoly right of the author or other copyright holder to copy, distribute and modify content in global and local networks, as was once laid down by the Bern Convention. But, not only legislators are trying to make changes to existing legislation to balance the interests of different parties. The courts themselves show no less zeal for a casual interpretation of copyright law when it comes to the Internet.

Among the most important court decisions related to copyright this year were the decisions of the European Court, in one of which the court ruled in favor of the legality of the built-in hyperlinks to the Retriever media analytics service, and in the other explained that libraries have the right to free digitization of their collections. However, the European Court of Justice narrowed the legal grounds for copyright fees , which most Europeans paid for using copying equipment and the media, ostensibly to compensate for the loss of copyright holders for piracy.

In June 2014, the Supreme Court of Great Britain considered a rather interesting case on the suit of the Association of PR Consultants to the Publisher Licensing Agency (NLA), better known in the legal circles as the “Meltwater case”. The Supreme Court of Great Britain, resolving the dispute on the merits , appealed to the European Court of Justice with the question whether end users who view web pages on their computers without further downloading or printing, violate exclusive copyrights in the absence of a copyright holder's license.

In particular, the UK Supreme Court asked the European Court whether these copies are (i) temporary (ii) transit or random and (iii) an essential part of the technological process within the meaning of art. 5 (1) EU Directive No. 2001/29 / EC1, subject to the conditions that:
(1) the end user has only access to online viewing of the page on the Internet, without the possibility of downloading, printing of any other means of copying materials;
(2) copies of web pages are automatically created on the screen and stored in a cache on the end user’s hard disk;
(3) making copies is a must for the technical process associated with proper and effective web surfing;
(4) the screen copy is saved on the monitor screen until the end user leaves the relevant web page, after which the page disappears from the computer;
(5) the cached instance remains in the cache until it is overwritten by other material that the end user views during further web surfing of subsequent web pages;
(6) copies of pages are saved for a short amount of time.

In other words, the question concerned the exclusion of this case from the general reproduction right for which a license must be obtained.

The Supreme Court overturned the decisions of the lower courts, and the European Court of Justice finally concluded that web surfing, i.e. Web browsing, in the absence of a license, does not entail a violation and is absolutely legal.

The question concerning the aggregation services in case No.C-466/12 of Nils Svensson turned out to be somewhat more complicated, in which the European Court of Justice was asked to answer the following question: is the provision of a hyperlink to a copyrighted work a particular case of bringing the work to the public? one of the ways to dispose of the exclusive right. To date, the European Court of Justice in this case has not been made.

In 2014, not only the courts, but also the English Intellectual Property Crime Unit (PIPCU), are particularly active in the fight against online piracy. Police confiscate domain names and are trying to put pressure on advertisers of sites suspected of massive copyright infringement, as well as cutting off the sources of funding for such portals. Of course, first of all, resources based on p2p technology were hit. It seems that the operation “Creative”, launched by the security agency with the participation of a number of large British associations of rights holders and advertisers, is now aimed at a global scale.

In 2015, it will be quite interesting to observe the development of the EU initiative on the reform of copyright in the digital era mentioned above.

The project Fix Copyright declares that copyright regulations in the European Union are desynchronized with reality and leave too many opportunities for free interpretation, which can be used for judicial trolling of Internet users and informational intermediaries.

While there are no borders in cyberspace, the European Union has so far failed to create a single digital market where the same rules apply for all countries. This makes the European digital market unattractive for companies aiming to provide a wide range of different services, depriving citizens in some Member States of access to services that are available elsewhere in the EU, and complicates international cooperation. All this puts Europe at a competitive disadvantage compared to other economies.

USA

After a complete failure in 2012, SOPA and PIPA under pressure from the general public, human rights defenders, Internet companies and users of the American Internet segment, new attempts to publicly discuss and adopt laws on copyright protection in the digital era in the United States were not made. However, after the hacker attack on Sony, it turned out that MPAA (American Film Producers Association) does not abandon its plans to push through a law introducing censorship on the Internet, which allows you to block any website that restricts freedom of speech and the development of the Internet. As it became known from the network-merged documents, the six largest American film companies used corrupt schemes to lobby their own interests and were preparing a major campaign against Google under the code name “Goliath”. And this is despite the fact that last year Google, at the request of the copyright holders, removed more than 345 million links that infringe copyrights. In addition, the US continues negotiations with various countries on the conclusion of a secret agreement on the Trans-Pacific Partnership (TPP) , the economic bloc to counter the growing influence of China and Russia. The draft agreement contains provisions that allow online surveillance of users' consumption of various content, personal inspection of individual devices (including smartphones and laptops) for the presence of counterfeit content at border crossings, as well as other equally odious proposals to strengthen state regulation of civil law circulation. digital content.

AUSTRALIA

A large-scale study of copyright law began in Australia in 2012. The conclusion of the study was submitted to Parliament in February 2014 for further discussion and final decision. The key recommendation of the expert opinion was that Australia should adopt a number of changes to national copyright law governing security exclusions in order to use works in good faith. However, time has shown that the Government’s priorities under the pressure of certain media lobbyists are significantly different from the priorities of experts and the IT community. Instead of encouraging the speedy adoption of the proposed norms, the Attorney General of Australiain every possible way delayed the publication of the report, and finally stated that the priority for reforming copyright laws was the implementation of the “3 warnings” provisions in the Australian civil law (similar to the American CAS system , which provides for “6 warnings” ), as well as the adoption of rules that enhance the protection of rights holders and allow you to block the sites of the offender.

ASIA

In the meantime, the European Union has been slowly analyzing the results of a large-scale public survey, in Hong Kong they have already begun to act, offering solutions on how to bring copyright legislation in line with the technologies that Internet users are offering today. In June 2014, the Government of Hong Kong submitted amendments to the copyright law. One of the key proposals in accordance with the proposed bill was the creation of “safe havens” for service providers (OSP). According to article 50 of the specified draft, the responsibility of the service provider for infringement of exclusive copyrights on the proposed online service can be limited if OSP fulfilled a number of conditions, including took the necessary actions to restrict access to the disputed content or stop copyright infringement after it was notified. As stated by the spokesmanThe Government of Hong Kong, the legislative proposal is aimed at protecting copyright in the digital space, as well as simplifying the fight against a large number of cases of digital piracy, taking into account the delicate balance of interests between copyright owners and users. However, despite the fact that the amendments are designed to establish a fair balance conducive to the culture of remixes, according to Professor Drake University Peter Yu, a revised copyright bill is still bad for most users who believe that the bill is not able to solve their current needs. And all because the prepared version of the amendments takes into account a very limited amount of exceptions for the “fair use” of works for non-commercial purposes, despite the fact that earlier, according to the results of the public consultation, there were much more cases.

Meanwhile, in Taiwan , a bill was proposed for adoption, similar to the scandalous American law SOPA. The author of the bill was the authorized federal agency for regulating the circulation of intellectual property (TIPO). In accordance with the project, TIPO offers itself to empower itself to restrict access to foreign sites, which, by the sole decision of TIPO, are “resources intended for massive infringement of copyrights of third parties”. The bill was withdrawn due to serious opposition from the Internet community and significant media coverage.
Another bill, the so-called “law of telecommunications”, according to which telecommunications companies are obliged to remove content if an administrative authority (not a court!) Considers that the posted content violates the law (including copyright and defamation law), and its elimination is technically possible, it was temporarily frozen, but most likely in the near future will go to Congress again.

In Singapore, from April 7 to 21, 2014, public consultations were held on the reform of copyright law. As a result, in the fight against piracy, Singaporean lawmakers went even further by adopting a law amending national copyright law. According to this act, national authorities have the right to block access to resources such as The Pirate Bay or KickAssTorrent , which grossly violate copyright law. The law came into force in August 2014 and allowed the right holders to file applications with the Supreme Court in order to further send instructions to the ISP to restrict accessto the evil sites of violators, as it follows from Art. 193A of the Copyright Act. Thus, in accordance with the new law, the Supreme Court of Singapore has the right to determine whether a particular website is used on the Internet for permanent gross violation of the copyrights of third parties. The court makes conclusions about the activities of the site based on several factors: (1) whether the main purpose of the site is copyright infringement; (2) whether the site contains directories, indices or categories of works that violate copyright; (3) whether the site owner or operator demonstrates disregard for the protection of exclusive copyright; (4) whether access to the site was restricted in accordance with decisions of courts of other foreign jurisdictions for violation of exclusive copyright rights; (5) whether the site contains any instructions and description of tools for restoring access to the site;(6) the amount of traffic to the site. This list is not exhaustive, and the court may consider other conditions for taking measures to block the Internet resource. If the Supreme Court gives the green light, right holders have the opportunity to remove controversial content or block the site hosting for eight weeks.

The law after its adoption by the National Parliament received the approval of all right holders around the world, however, some ISPs set forth important practical aspects of the law enforcement. So, it is not completely clear how the courts will describe ways to restrict access (by domain name or IP). At the same time, experts emphasize that the costs of such activities may vary significantly for Internet providers, depending on the blocking mechanism chosen by the courts. It is possible that this law will shift the financial burden of protecting exclusive copyright from copyright holders to Internet service providers.

RUSSIA

The last quarter of the year showed Russian users and the whole world that Russia is not going to follow the path of liberalizing some provisions of copyright laws to comply with current laws in the spirit of digital time. In the Presidential Administration, the Government and the State Duma, more and more attempts are being made to further toughen the regime of protection of exclusive rights, support non-transparent schemes for collecting and distributing copyright remuneration by CCUPs and bringing violators and informational intermediaries to justice.

Since the conclusion of the agreement between the USA and the Russian Federation on December 21, 2012“On combating the infringement of intellectual property rights on the Internet and agreeing on the plan of action of the parties to improve the protection of rights”, much has changed in the relations of the former partners. The sudden “cold trade and information war” of the two countries, which seemed to have completely bury the ambitious plans of the United States to introduce anti-piracy legislation (SOPA and PIPA, failed miserably at home), on the Russian Internet test site. However, despite the contradiction of the proposed amendments to Russia's strategic interests, as well as aggressive attacks from abroad, with considerable support from the Ministry of Culture, media lobbyists and a number of influential deputies, on November 14, 2014, the State Duma passed the law, and on November 25 was signed by the President.

Federal Law No. 364 will come into force on May 1, 2015 and will allow, as an interim measure, to block access not only to sites with unlicensed video content, but also with “pirated” copies of books, music and programs. The exception will be only photos. In this case, a violation will be considered not only the placement on the website of the copyright object itself, but also any placement of hyperlinks or other “information with the help of which you can get access” to unauthorized copies of works. At the same time, the law provides for the eternal blocking of the site in case of repeated violation of the copyrights of third parties.

Undoubtedly, the law carries major threats to the stable operation of the Russian Internet. Against the background of recent events, the law was almost negligible for Russian citizens. There were neither strikes, nor a wave of protests, nor statements by major technology companies, as was the case when the first version of the anti-piracy law was adopted (No. 187- ). However, the petition on the abolition of this legislation is currently being collected signatures for further transfer to the President of the Russian Federation.

At the end of 2014, a bill prepared by the RSP on the “global license” made quite a stir, providing for a general collection of content, which is proposed to collect from users through the ISP for the use of works for personal purposes using the Internet. Perhaps no proposal of recent years in the field of copyright reform has caused such an abundant stream of criticism from all sides. Overwhelmingly, representatives of both the Internet industry and government departments and ministries spoke out sharply negatively regarding this proposal. Experts and users unanimously opposed the adoption of the law on the portal for posting information about drafts of documents being prepared , as well as at the site of the Public Chamber . The portal "ROI" is still ongoingcollection of signatures for the initiative “to cancel the implementation of the concept of the Russian Union of rights holders on the introduction of anti-piracy collection on the Internet.” However, even despite the general dissatisfaction with the proposed approach, which, according to the authors, does not replace the current “anti-piracy approach” associated with blocking Internet resources, but complements it, the Ministry of Culture went even further . To implement this idea, the Ministry of Culture proposes to oblige telecom operators to install special expensive traffic analysis equipment - Deep Packet Insprection (DPI), and block pirated websites and unlicensed authorial content in real time.

In the meantime, Russian officials, experts in the field of copyright and interested parties are trying to figure out what to do next with the “anti-piracy law ver.2.0” and “global licenses”, the Russian daughter of the American film companies “RAPO” continues its march through the regions of the country, attracting users to criminal responsibility for illegal file sharing in p2p, thus intimidating consumers of free content in torrent networks. The loudest case of the outgoing year was the criminal process against a resident of Tatarstan Alexei Semenov for 10 torrent files uploaded to a local network, the cost of the rights to which was estimated at 11 million rubles. Just as it was in the Lopukhov case, the cost of the violated rights was claimed by the right holder, and was not subsequently verified either by the investigation, or by the prosecutor’s office, or by the court. The initiator of the initiation of this case was the same RAPO. Employees of this organization were involved in the case as experts, as appraisers, and as representatives of American film companies.

Despite the fact that, according to the version of the investigation, Semenov participated in the p2p film exchange for personal purposes, without any commercial benefit, as well as a number of procedural violations committed during the preliminary investigation and trial, the court convicted Alexey of “copyright infringement rights, that is, the unlawful use of copyright or related rights, as well as the acquisition, storage of counterfeit works for the purpose of selling, committed in a particularly large amount ”and sentenced to a fine of 4 0 thousand rubles in favor of the state. The verdict is currently being appealed.

However, even in a series of negative laws and bills of 2014, there were positive developments. First of all, we are talking about the “legalization of free licenses”, which appeared in the 4th part of the Civil Code after the adoption of the Federal Law No. 35-FZ of March 12, 2014. Thus, on October 1, 2014, Art. 1286.1 of the Civil Code of the Russian Federation, providing for the possibility of issuing open licenses for the works created to a wide range of users.

Undoubtedly, amendments to the Civil Code create a legal opportunity to introduce into civilized civil circulation a huge array of so-called user generated content (UGC - Users generated content) and provide a legal opportunity for all authors to grant a wide range of persons the rights to distribute / copy / rework created works at their own discretion ( including free and Creative Commons licenses)
Another fairly important and useful for the Russian society legislative initiative in 2014 was the Communist Party of the Russian Federation and the Communist Party of the Russian Federation “on the transition of the Soviet cultural heritage to the public domain”. Despite the argument, understandable to many users and experts, that the bill is aimed at establishing social justice and legally securing the fact that works of science, literature and art created in the Soviet period by order of the state for budget funds are, in fact, nationwide, that is public domain, the future fate of the bill is currently not defined.

As you can see, the problem of reforming copyright laws is today not only for Russian Internet users, but for the whole world. Attempts by major rightholders and state authorities to control private communications of citizens, while placing the entire burden of responsibility on information mediators, are being made in many countries. Only a consolidated position and joint actions of users, legal practitioners, civil society activists and global global online services can change the emerging approach aimed at expanding the forms and degree of responsibility of users and information intermediaries for copyright infringement. The use of such an approach can only exacerbate confrontations between the Internet community and the media business, but does not solve the problem in essence.

Will any constructive attempts be made in 2015 to rationally revise national legislation, will a step be made towards adopting a new international copyright convention , or will priority still be given to the good old idealistic war against piracy, which has already worn out the whole world ? Hopefully, reason will finally prevail over the greed of some cultural figures that are outdated in their business models.

The review was made as part of the annual research of the project “Time to change copyright” on the state of copyright legislation in the world and in Russia. “Time to change the copyright” - a non-commercial project of the IPA and CPDsupported by donations from users of the Runet. If you like what we do, join our campaign and help us protect freedom of speech, privacy and innovation.

Review prepared for the project "Time to change copyright . " 2015. CC0. Download it here . The review used materials from EFF , C4C , FFTF , CDT , CIS .