Copyright holders are against the idea of ​​the Ministry of Justice to soften the approach to liability for copyright infringement

Market participants are resisting the idea of ​​the Ministry of Justice to soften the approach to liability for copyright infringement, considering it necessary, on the contrary, to tighten it. In particular, the National Federation of the Music Industry wants to introduce a separate crime in the Criminal Code for Internet pirates with a more severe punishment than now, as well as expand the criteria for assessing damage. Software developers, for their part, are trying to prevent the Ministry of Justice’s proposed sharp increase in the threshold at which copyright infringement is considered a crime, and to increase administrative fines. Lawyers confirm that it is now difficult to bring Internet pirates to justice, but they doubt the real effectiveness of the ideas of copyright holders.

“Kommersant” got acquainted with the response of the National Federation of the Music Industry (NFMI, previously united Warner Music, Universal Music, Sony; now the founders are not disclosed) on the draft amendments prepared by the Ministry of Justice to the article of the Criminal Code of the Russian Federation on copyright infringement (Article 146).

The main idea of ​​the NFMI concerns a general tightening of liability: they consider it necessary to introduce a separate part of the same article for cases of “deliberate illegal use of copyrighted objects on the Internet.” It is proposed to increase the maximum term of imprisonment for Internet pirates from two to three years for large amounts of damage and from three to eight years for especially large amounts.

The association explains that the copyright infringement article is “virtually unavailable to copyright holders to combat digital piracy,” and most of the cases brought under it over the past 15 years relate to counterfeit goods and products on physical media. NFMI General Director Nikita Danilov clarified to Kommersant that among the cases that were initiated in connection with digital piracy during this time, only two concerned pirated copies of movies, two more concerned video games, and there was not a single one regarding music piracy.

Managing partner of Semenov & Pevzner Roman Lukyanov confirms that Art. 146 “does not actually apply to digital piracy, including music.” “It’s easier for law enforcement to come to some point of sale, seize counterfeit copies, conduct an examination and prove the presence of a crime against a specific seller or owner of the point,” explains Anton Gusev, partner at the law firm Timofeev, Gusev and Partners. “When it comes to the Internet, you need to calculate the volume of downloaded copies, estimate the cost, identify the persons involved in the operation of the site, etc., which is much more difficult.”

Meanwhile, the amendments of the Ministry of Justice, on the contrary, rather softened the approach to pirates. In particular, the ministry proposed increasing the threshold for criminal liability from 100 thousand rubles. up to 500 thousand rubles, and a particularly large bar – from 1 million rubles. up to 2 million rubles (see “Kommersant” dated September 19). NFMI does not argue with the numbers, but proposes a new way to calculate the damage of the injured copyright holder – based on the amount of income from “similar use of copyright objects” for six months.

But three associations in the IT field – APKIT, ARPP “Domestic Soft” and NP PPP – opposed the ideas of the Ministry of Justice. In a joint review sent to the Ministry of Justice (available to Kommersant; the parties confirmed the authenticity of the letter, refusing additional comments), they considered the increase in the threshold too drastic. If it is adopted, the association claims, “no more than 3–5% of the most expensive software products will remain under legal protection.”

The ministry justified its idea by the inflation accumulated since 2011. The associations, however, argue that prices for comparable software have fallen and functionality has increased. The associations proposed, as a compromise, to set the threshold for criminal liability at 200 thousand rubles.

The letter also talks about increasing administrative fines for copyright infringement (Article 7.12 of the Administrative Code) in order to eliminate the gap with the threshold of criminal liability. Currently, the maximum fine for legal entities is 40 thousand rubles; There are no specific proposals for new administrative fines in the letter. The Ministry of Justice did not respond to Kommersant; the Russoft association (which did not sign the letter) declined to comment.

Experts’ opinions on the effectiveness of market participants’ ideas differed. According to Roman Lukyanov, the situation with digital piracy can be changed if it is identified as a separate element in the Criminal Code, as the NFMI proposes, but at the same time “not tied to the amount of damage to qualify it as a crime.” Meanwhile, Mr. Gusev believes that the problem “is not in the wording of the article, but in the availability of forces and means of law enforcement agencies.”

Managing partner of the DRC law firm, Sarkis Darbinyan, fears that “with a broad interpretation, even the very fact of visiting a site with pirated video content or using a torrent for personal purposes could be considered Internet piracy.” According to the lawyer, the Ministry of Justice is now “focused on stopping the ability of foreign copyright holders to more actively pursue pirates in Russia.”

Yuri Litvinenko, Anna Zanina