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Law enforcement, trends and systemic problems / SurprizingFacts

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Four years have passed since the creation of the Russian "anti-piracy" machine, which currently operates on the basis of three "anti-piracy" laws:

Watching such active legislative and judicial activities aimed at combating online piracy and protecting exclusive rights On the work, we were curious how effective and beneficial this struggle is for the Russian Internet and the digital content market. This goal, together with activists from the Pirate Party of Russia and the Russian Federal Committee of Liberation, was devoted to the study

"Anti-piracy law: 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 circle of subjects charged with protecting the exclusive rights of rights holders was significantly enlarged.

  • Federal Law "On Amendments to Certain Legislative Acts of the Russian Federation on the Protection of Intellectual Rights in Information and Telecommunications Networks" of July 02, 2013 N187-FZ (inclusion of cases on the protection of exclusive rights to films in an exclusive The jurisdiction of the Moscow City Court and the creation of a single register of violators of copyright and (or) related rights);
  • Federal Law "On Amendments to the Federal Law" On Information, Information Technologies and Information Protection "and the Code of Civil Procedure of the Russian Federation" of November 24, 2014 N363-FZ (expansion of the list of protected objects and introduction of an unlimited blocking mechanism);
  • Federal Law "On Amendments to the Federal Law" On Information, Information Technologies and Information Protection "of July 1, 2017 N156-FZ (creating a mechanism for" cleaning up "search engines and ordering extra-judicial blocking of" mirrors "of websites).

These laws over a short period of time revolutionized the strategies and mechanisms for protecting works on the Internet, and also created new ways to suppress violations of intellectual property rights in the digital environment – blocking of violator sites through the state single register of infringers of copyrights and related rights on the Internet conducted by Roskomnadzor, And vymarivanie such sites and their "mirrors" from the search engines. Now the sites are entered into the Unified Register on the basis of the decisions of the Moscow City Court, and the search results from their "mirrors" should be cleared based on the decisions of the Ministry of Communications of the Russian Federation (the latter starts to operate on October 1, 2017).

Anti-piracy "machine and its tuning took place without taking into account the opinions of the IT industry, the rights and legitimate interests of owners of online services and Internet users. At the same time, the State Duma of the Russian Federation took the relevant amendments swiftly. In a similar mode, the Moscow City Court also holds court hearings on cases on the protection of copyright and (or) related rights on the Internet. The balance of interests of various actors involved in the dissemination of information in the network, the wisdom and proportionality of measures for restraint of offenses are those categories that none of the apologists of the zealous fight against online piracy thought about for a moment, and this logic, unfortunately, migrated to the judicial The practice of the Moscow City Court.

What was done in the framework of the study:

  • chronological review of "anti-piracy" legislation;

  • study of changes in the legal status of entities involved in the dissemination of information on the Internet, in the context of "anti-piracy" legislation;

  • The analysis of the Moscow City Court's jurisprudence 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) ;

  • a survey of hosting providers to identify the legal position on "anti-piracy" lawsuits;

  • collection of comments by online service operators on providing legal digital content on the effectiveness of "anti-piracy" legislation;

  • analysis of open data on the indicators of the Russian digital content market;

  • definition of new strategies for providing access to sites included in the Single Register of Violators of Copyright and Related Rights on the Internet.

  • the formation of conclusions and recommendations on improving the current legislation and law enforcement practice

Since a significant part of the study 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 in the framework of its analysis we collected data:

  • about the most active plaintiffs on "anti-piracy" statements

  • about the most active defendants and their participation in judicial proceedings in such cases

  • about the frequency of appealing against the decisions of the Moscow City Court on the restriction of access to sites

In the report on the results of the study, annotations of iconic cases from the Moscow City Court's jurisprudence are also given (for example, about two parallel judicial realities, attempts to block Youtube, Bookmate, Sports.ru, the blocking of RuTracker.org, the world agreements with rightholders, Attempts by the rights holders themselves to abolish the eternal blockage and many others).

In order to clarify the legal position of information intermediaries in cases on protection of copyright and related rights on the Internet, in addition to the analysis of judicial acts of the Moscow City Court, a survey was also conducted of hosting providers, which are the main procedural target for "anti-piracy" cases (more than 90% of claims Are presented exactly to the hosting provider): they sincerely do not understand how to fulfill the demands placed on them, and consider their status of the 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 reveal the patterns of "anti-piracy" judicial practice, which are very negative: the court does not conduct a "triple test" and ignores the position, rights and interests of respondents and Third parties, does not check the availability of illegal information on sites, appeals against decisions of the Moscow City Court does not bring any results, the cancellation of unlimited access to the site is simply impossible, for hosting providers and services

At the same time, the study of open data on digital content markets does not allow establishing a direct correlation between their growth and the growing amount of "anti-piracy" practice: Russian digital content markets began to grow Even before the adoption of "anti-piracy" legislation (with different speeds depending on the type of content), while Russian content is still selling poorly compared to foreign content. At the same time, in the context of chaotic locks, site owners developed new strategies and channels for providing access to sites and content distribution, which allowed them to continue to operate online services even after they were included in the Single Register and for unlimited access restriction.

The main conclusion About "anti-piracy" legislation and judicial practice: for merchants the rights to content of the benefits from "anti-piracy" measures are almost none, but for information intermediaries and Internet users, there is a lot of harm from them.

For details, see the report on the results of the study.