Gowling WLG (International) Inc - Russia
The unprecedented demand for online services brought about by covid-19-related quarantine measures has reignited the drive in Russia to bolster protection against attacks on internet piracy. Even before the coronavirus outbreak, the Association of Movie Producers had submitted a petition in 2018 to the Russian Ministry of Culture asking for stronger measures. The ministry has also renewed its attempts to tighten existing anti-piracy legislation with new proposed amendments.
While the draft proposals are yet to be published, the federal portal for draft regulatory acts suggests that the ministry is allegedly proposing:
- to shorten the deadline for removing illegal content from and introduce a more effective mechanism to protect film rights on the Internet; and
- to impose heavier fines for failure to comply with orders from the Federal Service for Supervision of Communications, Information Technology and Mass Media (Roskomnadzor) to remove infringing content.
It is hoped that these measures will be implemented by December 2020.
Russia’s existing anti-piracy regime comprises several laws. The first came into effect in 2013 and amended the Civil Code, the Code of Civil Procedure and the Law "On Information". It established a mechanism for deleting pirated video content from the web and named the Moscow City Court as the principal authority for considering cases related to the online infringement of copyrights of audiovisual content (including television series and movies).
The second set of amendments came into effect in 2015. These expanded the range of protected IP objects to include any objects of copyright and/or related rights, except for photographic works and works obtained by methods similar to photography.
These amendments allow the Moscow City Court to permanently block a website that posts infringing content and has a history of repeated copyright violations if illegal content has been posted on this site two or more times. However, this action is currently available by court order only.
Since 2017, rights holders have been able to block not only the original sites that host copyright-infringing content, but also their copies (known as mirror sites).
Other important changes include a definition of ‘information intermediary’ and the criteria for liability.
Presently, the process for blocking pirate sites involves the following steps:
- The rights holder submits an application to the Moscow City Court seeking a preliminary injunction in the form of restricting access to the site.
- Within one day the Moscow City Court issues a ruling on granting preliminary measures, and the infringing content is temporarily blocked, pending the outcome of hearings in the case.
- Within 15 days from the date when the preliminary injunction was granted, the rights holder must file a statement of claim. If no claim is filed or if the court finds no valid grounds for granting the claim on the merits then the content is released and the resource owner has the right to file a claim for damages suffered due to the unjustified blocking of the website.
- If the court rules that infringement has taken place, it sends its ruling to Roskomnadzor, which implements restriction of access to the site by adding it to the official registry of illegal sites. When a web page, website or IP address is added to this registry, Roskomnadzor notifies the hosting provider within three working days.
- The hosting provider must, within one working day, inform the owner of the site about the Roskomnadzor notification and the owner must then delete the illegal content within one working day. If no action is taken by the owner, the hosting provider has three days to limit access to the illegal site(s). In the event of inaction by both the hosting provider and owner, Roskomnadzor will send information about the site to the telecom operator, which immediately blocks it in Russia.
In the event of repeated violations, the Moscow City Court can direct Roskomnadzor to immediately and permanently block the site.
Rights holders, business associations and the Ministry of Culture have been pushing for even tighter and more expedited measures.
In 2017 the ministry proposed that Roskomnadzor be enabled to block pirated websites without further due process by way of a further court trial, as well as to oblige owners to provide information about the name of the company or contact details on their websites.
In 2018 the ministry submitted another bill, which would allow copyright holders to directly contact Roskomnadzor with regard to blocking a pirated resource, bypassed the judicial process, when both the owner of the resource and the hosting provider have ignored the claim of copyright infringement and have not deleted the content. This initiative did not move forward.
Rights holders maintain that the current law is insufficient. In 2018 the largest content providers and hosting companies signed an Anti-Piracy Memorandum. Signatories included Gazprom Media, Channel One, STS Media, VGTRK, Yandex, Rambler, Mail.Ru and Rutube. These companies voluntarily agreed to create a register of links to sites on which pirated content has been found. Internet resource administrators now check this register daily and can choose to remove links to such content.
It is hoped that the Ministry of Culture will succeed with its rights holder-orientated reforms, which are even more timely and relevant during this time of intensified internet use.