Elena Trusova, a partner at international law firm Goltsblat BLP, examines what the industry needs to know about the new Russian internet piracy law.
On August 1 the Russian film industry welcomed a new and eagerly-awaited law ‘On Combating Internet Piracy’ designed to curb illegal distribution of films and TV series on the web. The law is a highly positive and much-needed development, bringing Russian copyright law into the 21st century. Industry experts estimate that annual losses to the film business from pirated content are over $4 billion, so film and sound recording companies have high hopes for the anti-piracy law. However, questions have been raised about its effectiveness and aspects of the law are still a work in progress. So what do claimants need to know to make it work for them?
The need for a more up-to-date legal framework in line with the realities of the digital age has been obvious for some time. Until now there were no provisions in the Russian legal system to reflect the fact that the internet, social networking and file-sharing portals are now part of our daily lives and online piracy has been rife across Russia for years. For the first time in Russian legal history, the anti-piracy law establishes the concept of ‘information intermediary’ - a new term defined quite broadly to include administrators, hosting-providers and websites providing links to illegal content, rather than the content itself – who can be held accountable for copyright infringement.
In other words, the law facilitates the prosecution of website owners violating intellectual property rights. It also enables courts to block websites that violate copyright laws if illegal content is not removed within the timeframe specified.
Will it work in practice?
We have already seen positive examples of the law being applied successfully. It is helping to stop illegal distribution of TV series such as Interns and The IT Crowd following a claim by media firm Seichas earlier this month. However, the anti-piracy law also has some vocal critics who argue that its wording is too broad to work in practice and could almost be a threat to freedom of information and civil liberties.
Of course, the law is not perfect and greater clarity on a number of points would benefit everyone. For example, the current wording does not give a definite answer as to what should be blocked if a copyright holder brings a successful claim – the specific link to a film featured illegally on a social network, the profile of the user who posted the film or the entire social network website?
The first claim brought under the new anti-piracy law by art house distribution company Kino Bez Granits against Vkontakte, Russia’s biggest social network, over circulation of Steve McQueen’s Shame, David Cronenberg’s A Dangerous Method and other films, as we know, is a good illustration of some of the practical issues surrounding the new rules. Kino Bez Granits’ case was rejected by the courts but the reason was incomplete paperwork rather than any specific legal issues. The real lesson to draw from this case is that companies should take time to prepare their claims and be very attentive to the process of collecting evidence.
What do you need to know to bring a successful claim?
Particular care and attention will be needed in cross-border cases as some forms of evidence that are accepted regularly in the foreign courts, cannot be used in Russia. For instance, in the US or in Europe, it is a fairly common practice to confirm facts by affidavit. However, it is difficult to use affidavits in a Russian courtwhere original documentation on a transaction is preferred.
Getting comprehensive litigation documentation together takes a long time and it may be tempting to apply for an interim injunction which blocks a website for 15 days to limit potential losses whilst you are preparing a case. However this is likely to prove a wasted effort and the site in question would simply go back up online if you are not ready to proceed with your case within a fortnight. You should only apply for the interim injunction if you are fully ready to bring your case to court.
In short, forward planning will be key but that should not overshadow the fact that the anti-piracy law is good news for the film industry. Russia is Europe’s largest internet market today and with proper planning and the right professional advice, film and sound recording companies will now be better placed to make the most of opportunities in that market.