More about the draft law on the use of films in the Russian Federation without the permission of “unfriendly” copyright holders

As Kommersant has learned, a new bill on the use of films and music in Russia without the permission of “unfriendly” copyright holders provides for a moratorium on lawsuits and the transfer of unclaimed royalties to the treasury. The document says that content can be imported into Russia, including under contracts with foreign companies. In particular, the option of formally importing films and music from Belarus has already been discussed, where it is already allowed to use works, including software, without the consent of the copyright holders. Lawyers note that the adoption of the amendments creates the risk of similar sanctions against Russian companies abroad.

Kommersant got acquainted with the bill of senators Andrei Kutepov and Alexei Sinitsyn, which deals with the permission to use films in Russia without the permission of copyright holders from “unfriendly” countries. According to TASS, the document is planned to be sent for consideration to Prime Minister Mikhail Mishustin. According to the version available to Kommersant, the initiative is proposed to be extended to include music. Mr. Kutepov confirmed to Kommersant the authenticity of the document and said that he expects the bill to be adopted in the spring session of the State Duma: “Additions will be accepted as the bill passes.” The Ministry of Culture did not answer “Kommersant”.

The rules on the use of films and music without the permission of the copyright holders apply to content “imported into the territory of the Russian Federation by any means.” One of the import methods is also described: under a license agreement with a foreign structure, which itself has the right to use the work in its own country, both with permission from the copyright holder and according to local legislation.

In January 2023, President of Belarus Alexander Lukashenko signed a law legalizing the use of films, music, broadcasts and software (software) without the permission of copyright holders from countries declared “unfriendly” in Belarus.

After that, Mr. Sinitsyn said that he considered it possible to buy films in Belarus or adopt a similar law in the Russian Federation.

The document involves amendments to No. 46-FZ dated March 4, 2022. Among other things, the authors proposed to prohibit copyright holders and collective management organizations (CMOs) from “unfriendly” countries from applying to Russian courts until the government prepares some “by-laws”.

The government will also determine the authority that will establish the procedure for “customs clearance” of works and bringing them “to the requirements of Russian legislation.” The authors of the initiative did not explain to Kommersant what exactly they were talking about. “If objects of intellectual property are moved across the border on physical media, then, accordingly, they must be processed by customs,” explains Sergey Zuykov, patent attorney, managing partner of Zuykov and Partners. The design rules, judging by the document, should be described in by-laws, adds Vladimir Ozherelyev, head of the DRC intellectual property practice.

Deductions for the use of content, according to the bill, must be transferred to a special account. The system of special ruble accounts, which store deductions to “unfriendly” copyright holders, has been operating in the Russian Federation since May 2022, and its use in the field of software is being discussed (see “Kommersant” dated December 28, 2022). The authors of the project propose to add the ability to transfer to the budget deductions that have not been claimed by the copyright holder or OKMO for three years. A similar norm has been introduced in Belarus.

The appearance of a ban on access to court proceedings would be “a very strong violation of rights,” Sergei Zuykov believes: “Previously, such restrictions were not allowed anywhere in the world. If Russia introduces them, then this will happen for the first time in history.”

The adoption of the amendments may provide Russians with access to world premieres, but creates the risk of similar sanctions against domestic copyright holders abroad, Vladimir Ozherelyev, head of the intellectual property practice at DRC law firm, believes: “As a result, difficulties will be created for the dissemination of Russian culture in the world.”

Yuri Litvinenko