Again about using photos from the Internet. The Supreme Court allowed? 

    On April 25, the Board of Economic Disputes of the Supreme Court of the Russian Federation adopted a determination in which it recognized that photographs taken from the Internet can in some cases be used on websites without the consent of the copyright holders and without paying them remuneration. “Well, now you can finally take someone else's pictures, the Supreme Court has allowed it!” - such statements began to appear on professional forums and in comments. An important reservation must be made here: only in some cases, and rather limited ones. In which specifically - we understand this material.




    Brief Background


    The name of the popular blogger Ilya Varlamov is well known to Russian Internet users. Those in the subject know Varlamov not only as a blogger, but also as a regular participant in lawsuits (of course, he is not the one who goes to the courts, but his representative). From time to time, this one or the other online publication places on its website photos made by Varlamov and published by him in a personal blog. Naturally, the pictures are taken without the consent of the latter. Which serves as the basis for filing claims.


    Most of these cases are always resolved in favor of the plaintiff: the courts recover from editors and website owners in favor of Varlamov rather large pecuniary damages, usually amounting to several hundred thousand rubles - regardless of whether Varlamov’s authorship was indicated on the borrowed images and a link to a source.


    True, in the case of Ilya Varlamov’s lawsuit against the administration of the Archi.ru site , something went wrong at first. The Moscow City Arbitration Court, by a decision of January 26, 2016, refused to collect compensation for the blogger. The court noted, in particular, that his photographs were used on the archi.ru portal, dedicated to architecture and urban studies, in an informational review of thematic blogs. But how can you write a blog review without giving examples of what these blogs are about? At the same time, the authors of the review did not appropriate authorship, but indicated Ilya Varlamov as the author and put active links to the source.


    True, the appellate court, followed by the Intellectual Property Rights Court, already took the position of a blogger, reversing the decision of the Moscow Arbitration Court and recovering 220,000 rubles from the Archi.ru administration.


    So the budget of the blogger-photographer would have been replenished by a couple of hundred thousand rubles if the economic board of the Supreme Court were not interested in this dispute. But first, a little about the legal regulation of the issue.


    Legal regulation of the use of photographs


    The legal basis for the use of other people's works, including photographs, is part 4 of the Civil Code (CC) of the Russian Federation , devoted to copyright and patent law. Under the "use" here is understood, in particular, the reproduction of photographs on other resources.


    According to the general rule established in Art. 1229 and 1270 of the Civil Code of the Russian Federation, the author or other copyright holder has the exclusive right to use the work (including works of photographic art). It is the copyright holder who is free to allow or prohibit other persons from using the work, and the absence of a ban is not considered consent. It follows from this that the work can be used, incl. reproduced only with the consent of the copyright holder.


    This blogger Varlamov appeals to this general rule when he is suing those who have copied his photos on their resources without permission.


    However, there are exceptions to this rule - cases of so-called "Free use" of works. This includes, in particular, free use for personal purposes (Article 1273 of the Civil Code), free use of archives, libraries and educational institutions (Article 1275 of the Civil Code), free use for informational, scientific, educational or cultural purposes (Article 1274 of the Civil Code) .
    The last of these cases includes the possibility of “citing works” (subparagraph 1 clause 1 of article 1274 of the Civil Code) - it is of particular interest to us. Citation is allowed without the consent of the author, copyright holder and without paying him remuneration subject to a number of conditions: the authorship and reference to the source must be indicated, the purpose of citation is informational, polemical, scientific, critical, educational, and the goal may be to reveal the author’s creative intent. In this case, the volume of quotation should be justified by the purpose of citation.


    It was on “citing” the photographs of Varlamov that the defendant insisted - Archi.ru But his position was perceived by the courts with varying success: the court of first instance took his side, and then the Supreme Court, while the courts of appeal and cassation did not agree with this.


    The fact is that, when talking about citation, the Civil Code uses the expression “citation of works”, i.e. from a literal interpretation it follows that you can “quote” any work - at least literary, at least graphic, at least musical.


    But the position of most Russian courts, in particular, the Intellectual Property Rights Court, until recently, consisted in a narrow interpretation of the term “citation”. It was believed that only texts can be “quoted”, i.e. literary works, but not photographs . In support of this position, the Intellectual Property Rights Court even referred to the dictionary of V. I. Dahl, which contains the meaning of the words “quote”, “quote”.


    In addition to citation, Art. 1274 of the Civil Code of the Russian Federation names other possible cases of free use of works. Among them, for example, the use of works as illustrations in educational materials, the reproduction of works on current economic, social and religious issues, etc. You can read more about cases of free use of photographs in this material .


    Determination of the Supreme Court of the Russian Federation of April 25, 2017 : a brief analysis


    In short, the Supreme Court said: "Quote" photographs can still be. Quoting can be carried out not only in relation to literary works (as the Intellectual Property Rights Court had previously held), but also in relation to any other works, including photographs.


    But this does not mean at all that now any use of other people's photos can be called "quoting." The fact that the use of photography in each particular case is precisely free “citation” (and, for example, not an illustration, the legal regime of which differs from the citation regime), has to be proved to the defendant each time.


    Recall in what specific conditions the photographs were reproduced in the present case. It was a weekly review of thematic blogs on a thematic portal, with the goal of informing readers of this portal about what blogs they can watch on. As stated in the Definition, "the genre and nature of the presentation of the material ... is consistent with informational goals, since the authors of the review works outlined the latest at the time of publishing reviews of the works of Internet bloggers, presenting their audience with an overview of relevant information in the field of architecture, urban planning and heritage protection."


    In other words, quoting from these blogs in blogging material may be considered free quoting from blogs (including photographs). But if the material was not devoted to blogs, but, for example, to architectural directions, travels or something else, then it would not be possible to call “quoting” the use of other people's photos. You can “quote” a photograph only when the material in which the quote is used is devoted to discussing or criticizing this particular photograph (or the blog that contains this photograph) or revealing the creative intent of its author.


    In addition, the Supreme Court recalled four mandatory citation conditions provided for by the Civil Code of the Russian Federation and found that in the dispute in question all these conditions were respected.


    These conditions are:


    • compulsory indication of the author;
    • obligatory indication of the source of borrowing;
    • purpose - informational, scientific, educational or cultural (in the above case, the Court agreed that there was an informational purpose);
    • the volume should be justified by the purpose of citing (the Court found that in 14 weekly reviews Archi.Ru used only 22 photos of Varlamov from almost 600 photos posted on his personal blog, the volume of photo citations is insignificant compared to the total volume of reviews).

    Finally, the Supreme Court recalled that citing is possible only for those works that have become legally available to the public. This condition has also been met.


    P.S. Soon to rejoice?


    A similar situation with exclamations in the spirit of "Finally, the court allowed the use of other people's photos!" took shape in September 2016, when the Intellectual Property Rights Court overturned the decision of the Arbitration Court of the Sverdlovsk Region to recover compensation from Ilya Varlamov from the online publication 66.RU. Then this event was widely covered in the press and, in the wake of euphoria, it seemed to everyone that now Varlamov’s claims had come to an end, and finally you could use anything and anything from the Internet.


    But the announced precedent, which, as promised, should "change the work of all media," did not take place. The case went for reconsideration to the Arbitration Court of the Sverdlovsk Region, which on January 20, 2017 ... again ordered 66.RU to pay Varlamov compensation. Of course, such a turn was not as prominent as the previous “victorious” decision. At the time of publication of this article, a network publication should pay a blogger 275,000 rubles . The court of appeal has not yet made a decision (the hearing is scheduled for May 18, 2017).


    Similarly, in the current situation. There is no need to build illusions of permissiveness and reckon that now "everything will become new." Photographs, like other works, are still subject to copyright (we emphasize that any photographs, and not just highly artistic ones), and the law still protects the interests of copyright holders.


    References:
    - Civil Code of the Russian Federation, part 4
    - Case A40-142345 / 2015 (File cabinet of arbitration cases)
    - Case A60-54898 / 2015 (File cabinet of arbitration cases)
    - Decision of the Supreme Court of the Russian Federation of April 25, 2017 No. 305-ES16- 18302
    - Using someone else's photos. How not to infringe copyright. Part 1
    - Is it possible to “quote” a photo image? It turns out you can’t ...


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