Legal analysis

Russia: Federal law on amendments of several acts on the protection of intellectual property rights in information and telecommunication networks

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ARTICLE 19

14 Aug 2013

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On 1 August 2013, Russia’s new legislation on online copyright enforcement came into force. Federal Law of the Russian Federation No. 187-FZ amends a number of legislative acts of the Russian Federation on the protection of intellectual property rights in information and telecommunication networks. It aims to strengthen online copyright enforcement in Russia, and provides for new intermediary liability rules. Although, in the first instance, the Law only deals with “exclusive film rights, including movies and TV shows, in information and telecommunications networks, including the Internet,” it is expected to be expanded over time to include other forms of online content.

In this analysis, ARTICLE 19 examines the new legislation for its compliance with international standards on freedom of expression. We conclude that whilst the procedures to obtain injunctive relief provide some safeguards for freedom of expression, serious concerns remain as to the way in which the provisions will be applied in practice. This is especially so given that implementation of court orders falls under the jurisdiction of a government body rather than the courts or independent adjudicatory bodies.

ARTICLE 19 further considers that the new intermediary liability provisions represent a missed opportunity to establish clear rules in this area. Rather than learning from the best practices in other countries, Russian lawmakers have adopted notice-and-takedown rules that are unclear, unnecessary and fall short of international standards on freedom of expression. 

Recommendations

  1. The courts or independent adjudicatory bodies should avoid the making of overly broad blocking orders that would be in breach of international standards of freedom of expression. When issuing such orders, they should address themselves to the following
  • Any blocking order should be as targeted as possible;
  • No blocking order should be granted unless the rights holder seeking the order has established copyright in the works which are said to be unlawfully accessed;
  • No blocking injunction should be granted beyond the works in which copyright has been established by the rights holders;
  • Whether the blocking order is the least restrictive means available to bring an end to individual acts of infringement including an assessment of any adverse impact on the right to freedom of expression;
  • Whether access to other non-infringing material will be impeded and if so to what extent, bearing in mind that in principle, non-infringing content should never be blocked;
  • The overall effectiveness of the measure and the risks of over-blocking
  • Whether the blocking order should be of limited duration;

2. The blocking of entire domain names should be prohibited;

3. The execution of orders issued by courts or independent adjudicatory bodies should be supervised by the courts themselves rather than a government agency.

4. The liability of intermediaries should not be based on constructive knowledge but actual knowledge obtained by a court order.

5. The ‘notice-and-takedown’ provisions should be repealed. If, however, the notice-and-takedown provisions remain, the procedure should be amended to incorporate the minimum due process safeguards developed by ARTICLE 19.

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