Russia is asking for a moratorium on prosecutions for using foreign software

A consumer rights organization is asking the government to introduce a temporary moratorium on administrative liability for the use of software from foreign companies that have left Russia. These include, for example, products from IBM, Dell, VMware. Some copyright holders are still continuing their work to combat violations of licensing rights in Russia, lawyers say. They clarify that to exclude liability, amendments to the Civil Code (CC) will be required. The Federation Council believes that the moratorium should only apply to companies that previously legally acquired the appropriate licenses for foreign software.

“Kommersant” has read the letter from the public organization for the protection of consumer rights “Public Consumer Initiative” (OPI) to the Chairman of the Government of the Russian Federation Mikhail Mishustin and to the Federation Council dated October 3. In it, OPI asks the government to introduce a temporary moratorium on the prosecution of Russian organizations that use foreign software without the consent of the copyright holder, until the transition to domestic solutions, within the framework of administrative and civil codes. The letter notes that now “the developers themselves, the same IT giants who left Russia, have the right to initiate prosecution by law enforcement agencies.”

OPI notes that due to long-term procurement planning, state-owned companies and corporate organizations cannot quickly switch to Russian software. “For banks, telecom operators and other continuously operating organizations, changing the IT platform means not only a multiple increase in capital costs, which will inevitably be reflected in prices for end consumers, but also a sharp decrease in functionality,” the letter says. Among those who use foreign software, OPI names Rostelecom, Tele2, Sberbank, MTS and others, and examples include programs from Cisco, Dell, Nvidia and others. Tele2 told Kommersant that they use only those foreign programs for which they previously purchased a perpetual license. MegaFon said that any software that is implemented in the company is used under a license from the copyright holder. Rostelecom and MTS did not respond.

The government apparatus sent an order to the Ministry of Digital Development to consider OPI’s appeal, as follows from a letter dated October 10 (available to Kommersant). The government office forwarded Kommersant’s request to the Ministry of Digital Development. The ministry noted that up to 90% of foreign solutions already have Russian analogues, however, for cases where they do not exist, the Ministry of Digital Development, together with interested departments, is developing regulations that define special conditions. “When authorizing the use of software in each specific case, the needs of the user, the possibility of import substitution and the need for timely execution of plans for the transition to domestic solutions will be taken into account,” said a representative of the ministry.

In the response of the Federation Council to the OPI appeal dated October 11 (available to Kommersant), it is noted that “by 2027, the Russian market will have a sufficient amount of the necessary software, and by 2030 it will be able to almost completely replace foreign solutions.” The letter also states that there is “a need to develop and adopt balanced measures that would ensure an adequate level of protection for bona fide Russian users and at the same time would not slow down the process of import substitution.” The moratorium should cover only those users who previously legally acquired the appropriate licenses for foreign software, the letter of the Federation Council notes.

For the use of foreign software without a license (for example, Microsoft programs), liability is provided under Part 4 of the Civil Code – the copyright holder can recover a fine or damages from the violator, explains Pen & Paper lawyer Viktor Rykov. According to him, these norms cannot be revised by a decision of the government of the Russian Federation; this requires amendments to the Civil Code, which relates to the powers of parliament. Moreover, Mr. Rykov clarifies, excluding liability for violation of intellectual property rights “may contradict international treaties.”

The practice of holding people accountable for using software without a license is quite extensive, says managing partner of Seven Hills Legal Yulia Gurieva: “So, until recently, copyright holders of Adobe, Corel Draw, AutoCAD and Microsoft software products were very active in protecting their rights.” In 2022, according to her, the activity of foreign copyright holders in protecting their copyrights in Russia has noticeably decreased. “However, this does not mean that it has become safe to use foreign software in Russia without a license. Some copyright holders are still continuing their work to combat violations in the Russian Federation,” the lawyer notes.

Timofey Kornev