THE INTERNATIONAL COMPARATIVE LEGAL GUIDE TO: COPYRIGHT 2019
Мария Ловцова и Николай Медведев приняли участие в подготовке сравнительного руководства по авторскому праву «International Comparative Legal Guide Copyright 2019», содержащего анализ законодательства 29 стран в удобном формате вопрос-ответ. Специалисты ООО «ППФ «ЮС» отвечали за подготовку раздела, посвященного регулированию использования и защиты объектов авторского права в Российской Федерации.
1 Copyright Subsistence
1.1 What are the requirements for copyright to subsist in a work?
Copyright objects are scientific, literary and artistic works irrespective of the value, purpose, and manner of expression thereof. Only work which resulted from a creative effort can be protected by copyright. In practice, any work is considered creative, until proved otherwise.
For copyright to subsist in a work (both published and not), the latter must be embodied in an objective form, including orally.
Ideas, concepts, principles, methods, processes, systems, ways of solving technical and organisational problems and dealing with other tasks as well as discoveries, facts and programming languages are non-protectable.
1.2 On the presumption that copyright can arise in literary, artistic and musical works, are there any other works in which copyright can subsist and are there any works which are excluded from copyright protection?
The law sets out an open-ended list of works in which copyright may subsist, which include, inter alia: literary works; dramatic works; choreographic works and pantomimes; music works; audiovisual works; works of fine art, sculpture, graphics, and design; works of applied and scenographic art; architecture, town-planning and landscape works; photographic works; geographic or other maps, plans, sketches and three-dimensional works relative to geography and other sciences; and computer programs (which enjoy protection as literary works).
Copyright also subsists in derivative and composite works.
Some categories of works cannot be protected by copyright, namely: official documents, including laws and other normative acts; judicial decisions; official documents of international organisations, and their official translations; state symbols and signs; works of folk art (folklore) of no personal authorship; and coverage of events and facts having a purely informational character.
1.3 Is there a system for registration of copyright and if so what is the effect of registration?
For copyright to arise, be exercised and protected, a work does not have to be registered, nor must any other formalities be fulfilled.
At the same time, by request of the author/rightholder, copyright can be deposited with a specialisedorganisation (for example, the Russian Authors’ Society) or with a notary public. Such deposition serves as a confirmation of the existence of copyright on a certain date and, if/when disputes arise, is considered to be one of the proofs in authorship or copyright infringement disputes.
A computer program or database can be deposited with the Federal Executive Authority on Intellectual Property (Rospatent) at the copyright holder’s discretion and by his/her application which can be filed during the whole term of copyright of the computer program or database. Entries made into the register of computer programs or into that of databases are considered reliable, until proved otherwise.
1.4 What is the duration of copyright protection? Does this vary depending on the type of work?
Copyright protection lasts for the author’s lifetime and 70 years post-mortem, starting from the 1st of January of the year following the year of the death of the author, or the last of the authors for works created in joint authorship. In case of anonymous or pseudonymous works, the term of copyright is 70 years after the work had been lawfully published.
If the author was working during the Great Patriotic War or taking part in the same, the term of copyright shall be extended for four years more.
For works protected in accordance with international agreements, the term of copyright in these works in the Russian Federation shall not exceed the term fixed in the country of origin of the work.
When the term of copyright protection of a work expires, it falls into the public domain.
At the same time, pursuant to the law on museum funds and museums, the production of graphic products, printed matter, souvenirs and other items of mass production and fast-moving consumer goods bearing images of museum objects and museum collections is only allowed subject to the permission of the directorates of museums, even after the expiration of the term of copyright.
The right of authorship, the right of attribution, and the right of integrity of a work are protected indefinitely.
1.5 Is there any overlap between copyright and other intellectual property rights such as design rights and database rights?
The Russian law does not set out any limitations on the overlap of copyright and other intellectual property rights. In practice, the only limitation on such overlap is the difference between criteria of protectability of copyright and those of other intellectual property rights.
Thus, a shape of a product can be simultaneously protected by copyright, design, and as a trademark if it is distinctive and can perform the individualising function. The so-called “subsequent overlapping” can also take place, in particular, when copyright goes into the public domain, while the subject matter continues to be protected by a trademark.
A database may be protected both by copyright (if the selection and arrangement of the materials result from creative activity), and by sui generis database right (related right) (if the creation of the database has required substantial financial, material, organisational and other expenses).
1.6 Are there any restrictions on the protection for copyright works which are made by an industrial process?
No restrictions are imposed by the law for copyright works made by an industrial process.
2.1 Who is the first owner of copyright in each of the works protected (other than where questions 2.2 or 2.3 apply)?
An author of a work is an individual by whose creative effort the work was created. The general rule is that the author’s rights in a work, including economic rights, are initially reserved for its author, or authors if a work has been created in joint authorship of two or more individuals.
The person appearing as an author on the original or a copy of a work is considered to be its author, unless proved otherwise.
The economic right in an audiovisual work as a whole (for example, a cinematographic work) is reserved for a person who organised the creation of this work (producer), unless provided otherwise by agreements entered into between that person and the authors of the audiovisual work (director, script writer, and composer).
2.2 Where a work is commissioned, how is ownership of the copyright determined between the author and the commissioner?
When the performer is the author himself/herself, copyright in a commissioned work shall be owned by the performer (author). At the same time, such a commission agreement may also provide for the assignment of copyright in a work to the commissioner.
When the performer is a person other than the author of a work, copyright in a work created on the basis of a commission agreement shall be owned by the commissioner, unless otherwise provided for by the agreement.
When an agreement which did not provide directly for the creation of a work is made, copyright in the work created within the framework of such an agreement shall be owned by the performer, unless otherwise provided by the agreement.
2.3 Where a work is created by an employee, how is ownership of the copyright determined between the employee and the employer?
Copyright in a work created within the performance of an employee’s obligations under an employment agreement is owned by the employer, unless otherwise provided by the agreement between the employer and the author.
If within three years the employer fails to commence use of a work, to transfer the copyright to a third party, or to inform the author that it will be kept confidential, copyright of a commissioned work shall return to the author.
2.4 Is there a concept of joint ownership and, if so, what rules apply to dealings with a jointly owned work?
The joint ownership of copyright in a work may arise as a result of the creation of a work by a joint creative effort or the transfer of copyright to several persons, or as a result of copyright being inherited.
The rightholders dispose of the work jointly, unless otherwise provided by the agreement between them.
All profits made as a result of the joint ownership or as a result of the joint disposal of copyright in a work shall be distributed among all the rightholders equally, unless otherwise provided by the agreement between them.
Each of the rightholders shall have the right of independently taking measures to protect their rights.
3.1 Are there any formalities which apply to the transfer/assignment of ownership?
A copyright assignment agreement has to be made in writing.
If a copyright assignment agreement fails to specify an amount of remuneration to be paid or a method of calculation of the same to be applied, it will not be deemed concluded.
According to the general rule, the gratuitous assignment of copyright is not allowed between commercial organisations.
If a computer program or a database is registered with the Federal Executive Authority on Intellectual Property (Rospatent), the transfer of the right to such a computer program or a database is subject to registration with the mentioned authority.
3.2 Are there any formalities required for a copyright licence?
Copyright licence agreements must be made in writing. Agreements granting the right of use of a work in the periodical press may be concluded orally.
If a copyright licence agreement fails to specify an amount of remuneration to be paid or a method of calculation of the same to be applied, the agreement will not be deemed concluded.
A non-exclusive computer program or database licence agreement with a user may be concluded through a simplified procedure by the user starting to use the computer program or database on the specified terms (“shrink-wrap” and “clickthrough” licences).
3.3 Are there any laws which limit the licence terms parties may agree (other than as addressed in questions 3.4 to 3.6)?
Gratuitous exclusive licences are not allowed between commercial enterprises on the whole territory of the world and for the whole term of copyright protection. The mentioned limitation is aimed at the prevention of the circumvention of the prohibition for the copyright assignment on a gratuitous basis between commercial enterprises.
3.4 Which types of copyright work have collective licensing bodies (please name the relevant bodies)?
Collective management organisations (CMOs) manage rights on the basis of contractual agreements granting the respective powers and concluded between such organisations and copyright holders in writing. A CMO accredited by the state (an accredited organisation) may also manage rights and collect remunerations for those copyright holders with whom no agreements have been concluded.
The law provides for the state accreditation of CMOs in the following spheres:
- management of copyright in musical works made publicly available and in fragments of dramatico-musical works in relation to their public performance, broadcast or cable transmission (the accredited CMO – Russian Authors’ Society);
- exercising the right of authors of musical works used in audiovisual work to obtain remuneration for the public performance, broadcast or cable transmission of such an audiovisual work (Russian Authors’ Society);
- managing the right of resale in relation to fine art works as well as original manuscripts (autographs) of literary and musical works (Art Copyright Management Society);
- exercising the right of authors, performers, phonogram and audiovisual work producers to obtain remuneration for the reproduction of phonograms and audiovisual works for private use (Russian Union of Rightholders);
- exercising the right of performers to obtain remuneration for the public use, broadcast or cable transmission of phonogram published for commercial purposes (Russian Organization for Intellectual Property); and
- exercising the right of producers of phonograms to obtain remuneration for the public use, broadcast, or cable transmission of phonograms published for commercial purposes (Russian Organization for Intellectual Property).
The accredited organisations are not a hindrance to the establishment of other CMOs, including in the spheres listed above.
3.5 Where there are collective licensing bodies, how are they regulated?
CMOs are non-commercial organisations whose legal position, functions as well as the rights and obligations of their members are defined by the civil law, laws concerning non-commercial organisations and the charters of these organisations. Accredited CMOs carry out their activity under the control of an authorised federal executive authority – the Ministry of Culture of the Russian Federation, which, among other things, approves the standard charters of accredited organisations.
Accredited CMOs are obliged to report before the Ministry of Culture of the Russian Federation on a yearly basis on their activity in accordance with a set form.
The restrictions provided for by the antimonopoly law do not apply to the activity of accredited CMOs.
3.6 On what grounds can licence terms offered by a collective licensing body be challenged?
There are no specific grounds for challenging licence terms offered by a CMO in the law. At the same time, such terms can be challenged on a general ground if they are in conflict with the law or with rules set by the CMO itself.
4 Owners’ Rights
4.1 What acts involving a copyright work are capable of being restricted by the rights holder?
A copyright holder has an exclusive right to make use of a work in any form and in any way which is not contrary to the law. Other persons are not allowed to use a work without the copyright holder’s consent, except for the cases directly stated in the law.
In particular, the copyright holder is entitled to prohibit the following acts as regards his/her work:
- import (for the purpose of distribution);
- translation or another remaking of the work;
- practical realisation of an architectural, design, town-planning, or landscape project; and
4.2 Are there any ancillary rights related to copyright, such as moral rights, and if so what do they protect, and can they be waived or assigned?
The author of a work possesses the following moral rights in the work:
- right of authorship – the right of being recognised as the author of the work;
- right of attribution – the right of use of the work or the right of authorising others to use the work under his/her name, under an invented name (pseudonym) or without any name at all;
- right of integrity – the right of amending, abridging or complementing the work, including illustrations, a preface, an afterword, commentaries or explanations, whatever may they be;
- right of publication – the right to decide when the work may be first made available to the public; and
- right of withdrawal – the right to recall the decision to publish the work before its actual publication.
Moral rights of the author are inalienable, nor can they be transferred. Waiver of these rights is invalid.
4.3 Are there circumstances in which a copyright owner is unable to restrain subsequent dealings in works which have been put on the market with his consent?
The law provides for the principle of national exhaustion of copyright. Thus, if an original work or its copy is lawfully entered into the channels of commerce within the territory of the Russian Federation, its subsequent distribution is allowed without the necessity to obtain the rightholder’s consent or pay him/her remuneration (except for the artist’s “resale right” in respect of an original work).
Additionally, the law provides for some exceptions to copyright, which will be considered in the answer to question 5.4.
5 Copyright Enforcement
5.1 Are there any statutory enforcement agencies and, if so, are they used by rights holders as an alternative to civil actions?
There is a range of statutory agencies engaged in copyright enforcement in the Russian Federation:
- The Ministry of Internal Affairs – institutes administrative and criminal proceedings with respect to copyright infringement.
- The Federal Customs Service – detects and prevents the illegal transportation of goods containing copyrighted works across the border.
- The Federal Antimonopoly Service – prevents unfair competition connected with the unlawful use of intellectual activity results, including those protected by copyright.
- The Federal Service for Supervision of Communications, Information Technology, and Mass Media – limits access to information sources on the Internet which distribute copyrighted works (except photographic ones) unlawfully.
The above authorities protect the rights, including by the copyright holder’s request.
The effectiveness of copyright protection by any authority, including in comparison with civil actions, depends on the character of an infringement and on other circumstances.
5.2 Other than the copyright owner, can anyone else bring a claim for infringement of the copyright in a work?
Copyright protection measures, including the bringing of a claim for infringement, can be taken by request of the rightholder, CMO, or other persons in cases directly provided for by the law.
In particular, rights can be enforced by an exclusive licensee if the infringement concerns the licensee’s rights arising from the licence agreement.
If a work is published anonymously or under pseudonym (if the author is unknown), the publisher mentioned on the work is considered to be the author’s representative and as such has the right of enforcing the author’s rights, unless proved otherwise. This provision is applicable until the author reveals his/her identity and claims his/her authorship.
The current practice is that the trustee shall have the right of enforcing copyright using the same measures as are available to the rightholder if copyright was handed over for trust management.
5.3 Can an action be brought against ‘secondary’ infringers as well as primary infringers and, if so, on what basis can someone be liable for secondary infringement?
The law does not differentiate between “primary infringement” and “secondary infringement”. Any person unlawfully using a work can be made liable.
At the same time, the law provides for some peculiarities as regards liability of “information intermediaries”, among which there are:
- persons transmitting materials over an IT network, including via the Internet;
- persons providing hosting services on an IT network; and
- persons providing the possibility of access to materials stored on an IT network.
In particular, an information intermediary providing the opportunity to host a work on the Internet (for example, a hosting provider), is not liable for copyright infringement resulting from the hosting of the work on the Internet by a third party if the following conditions are fulfilled simultaneously by the information intermediary:
- the information intermediary did not know and was not supposed to know that the use of the work was unlawful; and
- if, upon receiving the rightholder’s request with respect to the infringement of copyright of the latter in writing, specifying the page and/or IP address on the Internet, the information intermediary took all necessary and sufficient steps in order to stop the infringement of copyright in a timely manner.
5.4 Are there any general or specific exceptions which can be relied upon as a defence to a claim of infringement?
The law provides for an exhaustive list of exceptions to copyright allowing for the free use of protectable works by third parties without the copyright holder’s consent, among which there are:
- reproduction of a work for personal use (with certain exceptions);
- certain uses of the work for informational, scientific, educational, or cultural purposes (for example: the making of quotations; the reproduction of political speeches and reports; the creation of a work in the genre of caricature or parody, etc.);
- certain uses of a work by libraries, archives and educational organisations;
- use of a work permanently located in a place open for the public to attend (with certain exceptions);
- public performance of a musical work at official or religious ceremonies;
- reproduction of a work for the purpose of enforcement;
- recording of a work by a broadcasting organisation for short-term use (under certain conditions); and
- certain uses of a computer program or database by its user within the limits provided by the law (actions necessary for the program to function on the computer of the user; creating one copy of a program for an archive; limited decompilation of a computer program so that it can work properly with other programs, etc.).
In addition, the court may refuse the protection if the copyright holder acts in bad faith and in other cases of misuse of the right based on the general provisions of the civil law.
5.5 Are interim or permanent injunctions available?
Both interim and permanent injunctions are allowed in copyright infringement disputes.
Interim injunctions in the form of the prohibition to perform certain actions may be applied by the court to a person in respect of which there is a sufficient reason to suppose that the person has infringed copyright.
Permanent injunctions in the form of the prohibition to perform certain actions may be applied to a person performing such actions or making necessary preparations to perform the same by a court decision. The abstract prohibition to use a work in the future, without its connection with a concrete infringement, is not allowed.
5.6 On what basis are damages or an account of profits calculated?
In cases of copyright infringement, a copyright holder is entitled, at his/her choice, to claim either damages or monetary compensation from the infringer.
Damages include expenses which were borne, or which will be borne, by a person whose right was violated to restore the right infringed as well as lost profits which the person would normally have made in commerce if it were not for the infringement of his/her rights.
The copyright holder shall, at his/her choice, have the right to claim the payment of remuneration:
- in an amount ranging from RUB 10,000 to RUB 5,000,000 (approximately USD 150 to USD 75,000, accordingly), determined at the discretion of the court;
- twice the amount of the value of the counterfeit copies of the work; or
- twice the amount of the average value of the licence for the use of the work.
When claiming compensation, the copyright holder is not required to prove the amount of damages caused to him/her. The final amount of compensation shall be set at the discretion of the court, within the limits established by the law, depending on the character of the violation and other circumstances of the case, subject to the requirements of reasonableness and justice. In some cases, the court may order recovery of compensation which is less than the minimum sum provided by the law.
5.7 What are the typical costs of infringement proceedings and how long do they take?
The average term of consideration of cases by courts of first instance is from four to seven months. The average cost of consideration of a case is from USD 5,000 to USD 8,000.
If the court decision is challenged in a court of appeal or in a court of cassation, the whole term of consideration of the case may take from 12 to 18 months on average. The total average cost of court proceedings then will be from USD 12,000 to USD 22,000.
5.8 Is there a right of appeal from a first instance judgment and if so what are the grounds on which an appeal may be brought?
Decisions by courts of first instance may be subject to appeal in a court of appeal.
Courts of appeal reconsider the case on the merits, including verifying the correctness of the application of the norms of substantive and procedural law as well as re-evaluating evidence.
The case may then be further considered by a court of cassation, which focuses on whether substantive and procedural law was applied correctly by the lower courts.
On exceptional occasions, the case may be referred to the supervisory instance.
5.9 What is the period in which an action must be commenced?
A copyright infringement suit must be filed within three years from the date when the person knew or should have known about the infringement of his/her right and became aware of the identity of the proper defendant.
If the parties resorted to an alternative dispute resolution procedure provided for by the law (for example, a mediation procedure), the running of the time period of the limitation of actions is suspended for the period established by the law for conducting such an alternative procedure.
The limitation of actions does not apply to moral rights.
6 Criminal Offences
6.1 Are there any criminal offences relating to copyright infringement?
The Criminal Law of the Russian Federation provides for criminal liability for the following offences:
- appropriation of authorship (plagiarism) if this offence caused heavy losses to the author or another copyright holder; and
- unlawful use of a copyrighted work as well as acquiring, storing, and/or transporting of counterfeit copies of works or phonograms for the purpose of sale on a large scale.
6.2 What is the threshold for criminal liability and what are the potential sanctions?
The illegal use of an object of copyright may be regarded as a criminal offence if the value of the copies of the work or that of the right of using it exceeds RUB 100,000 (about USD 1,500).
The illegal use of an object of copyright shall be punishable by a fine, or by compulsory labour or corrective labour, or by imprisonment for a term of up to two years (up to six years if the offence has been committed on an especially large scale or by a group of persons in previous concert, or by an organised group).
The appropriation of authorship (plagiarism) shall be punishable by a fine, or by compulsory labour or corrective labour, or by detention for a term of up to six months.
7 Current Developments
7.1 Have there been, or are there anticipated, any significant legislative changes or case law developments?
The year 2017 has seen a change to the listing of cases in that, before filing a suit, the rightholder has to forward the infringer a cease-and-desist letter. It is a compulsory requirement within the framework of copyright infringement disputes to forward such a letter, subject to the following conditions being fulfilled simultaneously: 1) the dispute is under the commercial court’s jurisdiction; 2) both the rightholder and the infringer of the copyright are legal entities and/or individual entrepreneurs; and 3) the suit claims damages or monetary compensation.
A number of amendments to the law governing the activity of accredited CMOs which are aimed at increasing the level of “transparency” of such activity entered into force in May 2018. In particular, the amendments have introduced the requirement for CMOs to conduct compulsory audits and publish annual (financial) reports on their website, and the mandatory requirement that a supervisory board be established for each CMO. The maximum sum deductible by a CMO to cover necessary expenses for the collection, distribution, and payment of remuneration must be determined by the Government of the Russian Federation.
The Supreme Court of the Russian Federation (Decision No. 305-ES16-18302 dated April 25, 2017) gives explanations as to whether a photographic work may be the subject of quotation for scientific, informational, or education purposes without the consent of the copyright holder. According to the Supreme Court, such quoting is possible in a volume which is justified by the purpose of quoting. Previously, the approach of only allowing quotations for literary works prevailed in court practice.
7.2 Are there any particularly noteworthy issues around the application and enforcement of copyright in relation to digital content (for example, when a work is deemed to be made available to the public online, hyperlinking, etc.)?
In October 2017, amendments to the so-called “Russian Antipiracy Law” entered into force. The said law provides, inter alia, for the limitation of access to websites unlawfully publishing works (except photographic ones) protected by copyright or related rights or information necessary to obtain them via the Internet.
The new amendments provide for the expedited blocking (for three days) of websites (so-called “mirrors”) which are confusingly similar and derive from websites, access to which has been blocked before due to their repeated infringement of copyright or related rights.