4 years have passed since the creation of the Russian "anti-piracy" machine, which currently operates on the basis of 3 "anti-piracy" laws:
Watching such an active legislative and judicial activity aimed at combating online piracy and protecting exclusive rights to works, we became curious how effective and beneficial this struggle is for the Russian Internet and digital content market. Together with activists from the Pirate Party of Russia
and Roskomsvoboda, we
dedicated our research to this goal."Anti-piracy law: enforcement, trends and systemic problems"
For four years, 3 versions of the anti-piracy law were adopted, the scope of the law was expanded, and the range of subjects who are charged with protecting the exclusive rights of rightholders was significantly increased.
- Federal Law “On Amendments to Certain Legislative Acts of the Russian Federation on the Protection of Intellectual Rights in Information and Telecommunication Networks” dated July 2, 2013 N187-FZ (inclusion of cases on the protection of exclusive rights to films in the exclusive jurisdiction of the Moscow City Court and the creation of the Unified Register of Violators copyright and (or) related rights);
- Federal Law "On Amendments to the Federal Law" On Information, Information Technologies and Information Protection "and the Civil Procedure Code of the Russian Federation" of November 24, 2014 N363- (extension of the list of protected objects and the introduction of a mechanism of indefinite blocking);
- Federal Law “On Amendments to the Federal Law“ On Information, Information Technologies and Information Protection ”of July 1, 2017 N156-FZ (creation of a mechanism for“ stripping ”of search engines and the procedure for out-of-court blocking of“ mirrors ”of websites).
These laws in a short period of time revolutionized the strategies and mechanisms for protecting works on the Internet, and also created new ways to curb intellectual property rights violations in the digital environment - blocking violator sites through the state Unified Register of Copyright and Related Rights Violators on the Internet, which is conducted by Roskomnadzor, and extinction of such sites and their "mirrors" from search engines. Now the sites are entered into the Unified Register on the basis of decisions of the Moscow City Court, and clearing of search results from their “mirrors” should be carried out on the basis of decisions of the Ministry of Communications of the Russian Federation (the latter begins to operate October 1, 2017).
As is known, the creation of an “anti-piracy” machine and its tuning took place without taking into account the views of the IT industry, the rights and legitimate interests of owners of online services and Internet users. In this case, the relevant amendments to the State Duma of the Russian Federation famously adopted in the shortest possible time. In a similar mode, the Moscow City Court also holds court sessions on cases of protection of copyright and (or) related rights on the Internet. The balance of interests of various actors involved in the dissemination of information on the network, the reasonableness and proportionality of measures to prevent offenses are those categories that none of the apologists of the zealous fight against online piracy thought for a minute, and this logic, unfortunately, migrated to the judiciary practice of the Moscow City Court.
What was done in the study:
- chronological review of anti-piracy legislation;
- studying changes in the legal status of entities involved in disseminating information on the Internet, in the context of "anti-piracy" legislation;
- analysis of the judicial practice of the Moscow City Court on the protection of copyright and related rights on the Internet for the period from August 1, 2013 to June 30, 2017 (statistics, interesting cases, trends and patterns);
- survey of hosting providers in order to identify the legal position on "anti-piracy" lawsuits;
- collecting comments from online service operators on providing legal digital content on the effectiveness of “anti-piracy” legislation;
- analysis of open data on indicators of the Russian digital content market;
- definition of new strategies for providing access to sites included in the Unified Register of violators of copyright and related rights on the Internet.
- Formation of conclusions and recommendations for improving the current legislation and law enforcement practice
Since a substantial part of the research is devoted to judicial practice related to the protection of copyright and (or) related rights on the Internet for the entire period of the “anti-piracy” legislation, i.e. from August 2013 to June 2017, it should be noted that as part of its analysis, we collected data:
- about the most active plaintiffs on "anti-piracy" statements
- about the most active defendants and their participation in court proceedings in such cases
- on the frequency of appealing decisions of the Moscow City Court on restricting access to sites
The research report also contains annotations of iconic cases from the judicial practice of the Moscow City Court (for example, two parallel judicial realities, attempts to block Youtube, Bookmate, Sports.ru, blocking RuTracker.org, world agreements with copyright holders, attempts of the right holders themselves to cancel the eternal blocking and many others).
In order to clarify the legal position of information mediators in copyright and related rights protection cases on the Internet, in addition to analyzing the judicial acts of the Moscow City Court, a survey was also conducted by hosting providers, who are the main procedural target in “anti-piracy” cases (more than 90% of claims are filed against to the hosting provider): they sincerely do not understand how to fulfill their requirements, and consider their status as a defendant in “anti-piracy” cases unfair and illogical.
In general, the analysis of judicial acts of the Moscow City Court on cases of protection of copyright and related rights made it possible to identify patterns of “anti-piracy” court practice, which are very negative: the court does not conduct a “triple test” and ignores the position, rights and interests of the defendants and third parties, checks for unlawful information on websites, appeals against decisions of the Moscow City Court does not bring any results, cancellation of unlimited access restriction to the site is simply impossible, on hosting providers and protection services Those web sites are charged all legal costs of the case.
At the same time, the study of open data on digital content markets does not allow establishing a direct correlation between their growth and increasing volumes of anti-piracy practice: Russian digital content markets began to grow even before the adoption of anti-piracy legislation (at different speeds depending on the type of content) at the same time, Russian content is still as badly sold as compared to foreign. At the same time, in the conditions of chaotic blocking, the site owners developed new strategies and channels for providing access to sites and distributing content, which allowed them to continue operating online services even after they were included in the Unified Register and indefinitely restricted access.
The main conclusion about the "anti-piracy" legislation and judicial practice: there is almost no benefit to the "anti-piracy" measures for content rights dealers, but for information intermediaries and Internet users there is a lot of harm from them.
Details of the report
on the results of the study.