In Russia, it is proposed to introduce information blocking on the network at the request of the copyright holder

    On January 25, 2013, a bill was published on the website of the Ministry of Culture in a remote manner that reproduces the mechanism for removing and blocking information that takes place in the DMCA.

    Under the cut is a brief analysis of the provisions of the bill and the resulting absurdities.



    The draft proposes to supplement Federal Law No. 149-ФЗ “On Information, Information Technologies and Information Protection” with Article 15.2. "Restrictions on the transfer of information in case of violation of exclusive rights."

    Part 1 of the article states that the copyright holder has the right to send a statement to the website owner or hosting provider about a violation of his intellectual rights (in this case, both exclusive and personal non-property (for example, the author’s right to a name, etc.) with illegally posted information. this statement should be sent either by mail with a receipt of receipt or by e-mail, but in this case it must be signed by electronic signature.

    In the application to the copyright holder, it is enough (1) to indicate his personal data, (2) information about the object, intellectual property rights, the author (copyright holder) of which he is and (3) the domain name of the site on which the disputed information is posted. It can be seen that the copyright holder is not required to confirm the fact that he is the copyright holder, and is also not required to indicate the specific address at which the information is posted.

    After receiving a message from the copyright holder, the hosting provider is obliged to (sic!) Within 1 day (1) inform the site owner about it and (2) notify him of the need to immediately delete information (3) or take other measures to suspend (block) access to such information and (or) to suspend (block) its distribution. It is noticeable that the established period clearly does not allow properly analyzing the statement of the copyright holder, as well as taking any adequate measures to ascertain the presence or absence of his rights.

    The site owner within 24 hours (sic!) From the moment of receiving information from the hosting provider is obliged (1) to either delete the information (2) or take other measures to suspend (block) access to such information and (or) to suspend (block) its distribution .

    At the same time, the owner of the site has the right to send information about the measures taken by him to the user who posted the information, who, in turn, within 10 working days from the date of taking any measures by the owner of the site, has the right to provide him or the hosting provider with his objections to the statement of the copyright holder and arguments for the legitimate placement information. In this case, the user must provide "information sufficient to unambiguously identify the specified user." The user in this case is at the most disadvantageous position, since no one is obliged to inform him of the reasons for removing or blocking access to information, and generally notifying the copyright holder of the application (this is only the right of the site owner, but not his obligation).

    If after 1 month from the moment the hosting provider or site owner redirected the user’s objections to the copyright holder, the latter did not apply to the court, then the hosting provider or website owner has the right to resume access to information at the request of the user.

    If the appeal to the court took place, then the information is blocked until a court decision is made. A small indulgence for all participants in the relationship is that if the court establishes the lawfulness of the information, the copyright holder is obliged to compensate for the damage caused by the restriction of access.

    Moreover, the project does not determine the procedure for sending messages, except for the very first message from the copyright holder, which suggests the possibility of sending messages by e-mail (Articles 434, 435 of the Civil Code of the Russian Federation).

    Interestingly, subparagraph b of paragraph 1 of part 6 of article 15.2., Regardless of whether the information was deleted or blocked, obliges the hosting provider immediately after receiving information from the copyright holder to assist him in collecting and providing evidence (which, for a second, is done by compiling inspection protocol at a notary public) by copying and storing illegally posted information while maintaining the possibility of its subsequent use, the format in which the information was created, transmitted or received, about The values ​​of the sender and the recipient information and the date and time of its creation or receipt.

    Similarly, paragraph 2 of part 6 of article 15.2. obliges the owner of the site (domain name administrator) on the basis of a written request from the copyright holder to provide information about the person who posted the information. However, the project does not establish how such a request should be sent. For example, if the registered administrator of the domain name is a legal entity and his contact email is indicated in the whois data, then from the point of view of the Civil Code of the Russian Federation (Articles 434, 435), “written appeal” can be understood as including correspondence by e-mail. Also, what kind of “information about the person who posted the information” is not established: is there enough nickname or ip of the person and the time of posting the information, or (assuming

    This also leads to sad thoughts due to the fact that the flip side of the coin is the implied obligation of the site owner to collect information about his users and store it in case of making demands. It can be assumed that if the project takes place in the form in which it is presented, then in most cases law enforcement agencies and copyright holders will be guided by this approach.

    One way or another, it is noticeable that lawmakers are trying to shift the burden of finding "villains" onto the shoulders of site administrators and hosting providers, with the responsibility of creating an evidence base for subsequent lawsuits (or administrative or criminal prosecutions).

    The findings are somewhat disappointing:
    1. the law actually creates a presumption that the information violates the rights of the copyright holder;
    2. the law actually creates a presumption that the person who submitted the application is the copyright holder, while the copyright holder is only obliged to indicate himself as such, but is not obliged to confirm this;
    3. the copyright holder is obliged to indicate “the domain name of the site on the Internet,” but not the specific address of the information, which actually confuses the implementation of this law in cases, for example, of forums or file archives and creates excellent opportunities for abuse;
    4. in any case, the owner of the site is obliged to make a decision either to delete information or to restrict access to it;
    5. The responsibility for collecting evidence and securing it rests with the hosting provider, site owner, as well as the user (!). Thus, you can not bother spending, shifting it to third parties, and then use the information they provide;
    6. in fact, we can talk about the presence of an implied obligation to explicitly or implicitly collect information about users who post content;
    7. If the copyright holder does not file a lawsuit in court, then access to information is restored, but the project does not provide an answer in case the information has been deleted. Is it recoverable?
    8. in the event that the court establishes the lawfulness of posting information, compensation for damage is paid only if access to it was limited, but what if it is deleted?
    9. The project only takes into account “going to court to protect its violated rights”, but what if the court, in the course of administrative proceedings, establishes the absence of an administrative offense? Is damage compensable?
    10. If the copyright holder does not apply to the court within a month, he does not lose the right to claim (the total limitation period in accordance with the Civil Code of the Russian Federation is 3 years). Assume that the copyright holder did not go to court, access to the content was restored. Given the fact that there is still no clear understanding of who is responsible for the content posted on the network, the copyright holder goes to court with the hosting provider or website owner (it’s easier to get them than the user), which actually makes this law inoperative.

    It can be argued that such a mechanism can be used to block objectionable resources and delete information, since there is a presumption of copyright of the copyright holder and the illegality of the information posted, while all other persons are placed within a strict framework and are obliged to serve the interests of the copyright holder, including the imaginary .

    And for dessert, it is assumed that for violation of the said law the hosting provider and the hosting owner will be liable in accordance with article 13.29 of the Administrative Code of the Russian Federation with fines for individuals in the amount of 3 to 5 thousand rubles. The person who posted the information may be subject to administrative liability under paragraph 1 of Article 7.12. with a fine for individuals in the amount of from 1.5 to 2 thousand rubles with the confiscation of counterfeit copies, materials and equipment used to reproduce them, and other instruments for committing an offense.

    Also popular now: