The State Duma proposes to consider multiple violations of the rights of several copyright holders as one

The State Duma adopted in the first reading amendments to the Civil Code on intellectual property rights. They allow considering a multiple violation of the rights of several right holders as one and collecting general compensation. Lawyers and market participants believe that the project threatens to increase pirate resources and “levels the efforts of the state” to combat them.

“Kommersant” studied the draft law adopted by the State Duma in the first reading on amendments to the fourth part of the Civil Code of the Russian Federation (CC), dedicated to the rights to the results of intellectual activity. In particular, the document supplements the Civil Code, art. 1252.1 for compensation for violation of such rights. It allows the violation of several rights of several right holders to be considered as one if it is committed simultaneously (or in a short time) in one or more related ways. Under current rules, if one action violates the rights to several intellectual property (for example, songs or films), compensation can be claimed for each.

If the amendments are finally adopted, the sale of, for example, one counterfeit T-shirt that displays several trademarks will be considered as one infringement.

“All the results of intellectual activity and means of individualization are applied to one product and the economic result of such a sale does not change in any way from the fact that there are several images on a T-shirt, and not one,” the explanatory note says. Also, a single violation may recognize the transportation and storage of counterfeit goods, which were then sold, or “reproducing a work on an Internet site.”

For copyright holders, the amendments retain the right to choose between fixed (from 10,000 rubles to 5 million rubles) and floating compensation (a multiple of the cost of licensed rights or counterfeit media). Firm compensation will be limited to 100,000 rubles. (and the multiplicity – two), if the defendant did not know that he was violating someone else’s exclusive rights, the violation was committed for the first time, or he acted “not in the course of entrepreneurial activity.” However, the Supreme Court of the Russian Federation, in a resolution of the plenum of 2019, completely exempted a person from liability if he acted on instructions and did not know about the violation of rights, says PATENTUS lawyer Diana Shaklina.

The concept of a single violation “will greatly simplify the life of pirates,” a Kommersant source on the market believes: “For example, a pirate made a website, posted a thousand films, books, and musical works of various copyright holders. There is a single economic goal here – to earn money through advertising on the site.

As a result, the rights of dozens of their owners will be violated, but they will lose the opportunity to demand compensation in full, the interlocutor of Kommersant believes. At the same time, the Ministry of Digital Transformation is discussing the abolition of the blocking of sites that show video content from Western companies that is not officially represented in the Russian Federation, RIA Novosti reported.

Punishment for multiple violations as one “provides many indulgences for violators,” confirms Anatoly Semyonov, director of the Parallel Import Association: “This may well lead to an increase in pirate resources.” In addition, according to Kommersant’s interlocutor in the industry, the amendments can also be interpreted in such a way that if a pirate does not have the status of an individual entrepreneur, his liability is limited to 100 thousand rubles: “This completely eliminates the work of the state in many years of efforts in the fight against piracy” .

Lawyers also consider the new definition of counterfeitness in Art. 1515 of the Civil Code of the Russian Federation.

Now counterfeit goods are goods, their labels and packaging, on which a trademark or similar designation is illegally placed. The amendments refer to them only labels and packaging, but not the goods themselves. Here, notes Diana Shaklina, “the intention is unclear”, because often other people’s trademarks are placed on products.

On the other hand, the project will allow the courts to combine violations of the rights of different right holders by different persons into one solidarity and collect compensation from any of the combined persons, explains Mr. Semenov. As a result, according to him, the retailer may be charged the cost of a consignment of counterfeit goods that he did not sell.

Anna Zanina, Yulia Yurasova